Schoolcraft v. The City Of New York et al
Filing
16
ANSWER to Complaint with JURY DEMAND. Document filed by Jamaica Hospital Medical Center.(Radomisli, Gregory)
GJR/A
82-82153
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- --- ------ - - -- - --- - -- -- --- ---- ---- - --- --- -- ----- ----- ---- - -- --- ------ )(
ADRIAN SCHOOLCRAFT,
VERIFIED ANSWER
Plaintiff,
Civil Action No.: 10 CIV
-against -
6005 (R WS)
THE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax Id. 873220, Individually
and in his Official Capacity, ASSISTANT CHIEF
PATROL BOROUGH BROOKL YN NORTH
GERALD NELSON, Tax Id. 912370, Individually
and
in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually
and in his Official Capacity CAPTAIN THEODORE
LAUTERBORN, Tax Id. 897840, Individually and in
his Offcial Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually
and in his Offcial
Capacity, SGT. FREDERICK SAWYER, Shield No.
2576, Individually and in his Official Capacity,
SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Offcial Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax
Id. 915354, Individually and in his Official C.apacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id.
885374, Individually and in his Offcial Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004,
AND P.Oo's "JOHN DOE" #1-50, Individually and in
their Offcial Capacity (the name John Doe being
fictitious, as the true names are presently unown)
(collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR.
ISAK ISAKOV, Individually and in his Official
Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity and
JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and
in their Official Capacity (the name John Doe being
fictitious, as the true names are presently unkown),
JURY TRIAL
DEMANDED
Defendants.
-------- --- - -- -- - - -- - --- ------ - --- ---- --- -- -- -- -- -- -- - --- - -- ---- - - -- - )(
Defendant JAMAICA HOSPITAL MEDICAL CENTER, by its attorneys, MARTIN
CLEAR WATER & BELL LLP, answers the plaintiff complaint as follows, upon information and
belief:
PRELIMINARY STATEMENT
1. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraph of
the complaint designated "I", except begs leave to refer
all questions of fact to the trier of fact and all questions of law to the Cour.
2. Denies each and every allegation contained in the paragraph of the complaint
designated "2".
JURISDICTION
3. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph of the complaint designated "3", except begs leave to refer
all questions of fact to the trier of fact and all questions of law to the Court.
VENUE
4. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph of
the complaint designated "4", except begs leave to refer
all questions of fact to the trier of fact and all questions of law to the Cour.
JURY DEMAND
5. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph of the complaint designated "5", except begs leave to refer
all questions of fact to the trier of fact and all questions of law to the Court.
PARTIES
6. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs ofthe complaint designated "6", "7", "8", "9", "10", "11"
and "12".
7. Denies each and every allegation contained in the paragraph of the complaint
designated "14", except admits that at all relevant times herein, THE JAMAICA HOSPITAL
MEDICAL CENTER is a private hospital duly licensed to operate under the laws of the State of
New York and operates a facilty located at 8900 Van Wyck Expressway, Jamaica, New York.
8. Denies each and every allegation contained in the paragraph of the complaint
designated "15", except admits that at all relevant times herein, THE JAMAICA HOSPITAL
1503398_1.DOC 2
the State of
MEDICAL CENTER is a private hospital duly licensed to operate under the laws of
New York and operates a facility located at 8900 Van Wyck Expressway, Jamaica, New York
and begs leave to refer all questions of fact to the trier of fact and all questions of law to the
Court.
9. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of
the complaint designated "16" and "18", except admits
that defendants DR. ISAK ISAKOV and DR. LILIAN ALDANA-BERNIER were, and stil are,
duly licensed to practice medicine in the State of
New York.
10. Denies each and every allegation contained in the paragraphs of the complaint
designated "17" and "19", except admits that defendants DR. ISAK ISAKOV and DR. LILIAN
ALDANA-BERNIER were, and stil are, associated with the defendant HospitaL.
11. Denies each and every allegation contained in the paragraph of the complaint
designated "20".
FACTUAL BACKGROUND
12. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated "21", "22", "23", "24", "25",
"26", "27", "28", "29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41",
"42", "43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57",
"58", "59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69", "70", "71", "72", "73",
"74", "75", "76", "77", "78", "79", "80", "81", "82", "83", "84", "85", "86", "87", "88", "89",
"90", "91", "92", "93", "94", "95", "96", "97", "98", "99", "100", "101", "102", "103", "104",
"105", "106", "107", "108", "109", "110", "III", "112", "113", "114", "115", "116", "117",
"118", "119", "120", "121", "122", "123", "124", "125", "126", "127", "128", "129", "130",
"131", "132", "133", "134", "135", "136", "137", "138", "139", "140", "141", "142", "143",
"144", "145", "146", "147", "148", "149", "150", "151", "152", "153", "154", "155", "156",
"157", "158", "159", "160", "161", "162", "163", "164", "172", "173", "181", "182", "199",
"207", "208", "209", "210", "211", "214", "215", "216", "217", "218", "219", "220", "221",
1503398-lDOC
3
"222", "223", "224", "225", "226", "227", "228", "229", "230", "231", "232", "233", "234",
"235", "236", "237", "238", "239" and "240".
13. Denies each and every allegation contained in the paragraphs of the complaint
designated "165", "167", "170", "191" and "197", except begs leave to refer all questions of
fact
to the trier of fact and all questions of law to the Court.
14. Denies knowledge or information suffcient to form a belief as to each and every
the complaint designated "166" and "168", except begs
allegation contained in the paragraphs of
leave to refer all questions of fact to the trier of fact and all questions of law to the Court.
15. Denies each and every allegation contained in the paragraphs of the complaint
designated "169", "171", "178", "183", "185", "186", "187", "188", "189", "190", "193", "194",
"195", "196", "203", "204", "205", "206", "212", "213", "241" and "242".
16. Denies each and every allegation contained in the paragraphs of the complaint
designated "174", "175", "176", "177", "179", "180", "184" and "192", except admits that
defendant rendered certain professional services in accordance with acceptable medical standards
and due care and begs leave to refer all questions of fact to the trier of fact and all questions of
law to the Cour.
17. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated "198", "200", "201" and
"202", except admits that defendant rendered certain professional services in accordance with
acceptable medical standards and due care and begs leave to refer all questions of fact to the trier
of fact and all questions of law to the Court.
AS TO THE FIRST CLAIM FOR RELIEF
DEPRIVATION OF FEDERAL RIGHTS UNDER 42 U.S.C. § 1983
18. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph ofthe complaint designated "243".
19. Denies each and every allegation contained in the paragraphs of the complaint
designated "244", "245" and "248".
1503398-lDOC
4
20. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of
the complaint designated "246" and "247".
AS TO THE SECOND CLAIM FOR RELIEF
FALSE ARRST UNDER 42 U.S.C. § 1983
21. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "249".
22. Denies each and every allegation contained in the paragraphs of the complaint
designated "250" and "251".
AS TO THE THIRD CLAIM FOR RELIEF
VIOLATION OF FIRST AMENDMENT RIGHTS UNDER 42 U.S.c. § 1983
23. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "252".
24. Denies each and every allegation contained in the paragraphs of the complaint
designated "253", "254", "255", "256", "257", "258", "259", "261", "262", "263", "264", "265",
"266" and "267".
25. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph of the complaint designated "260".
AS TO THE FOURTH CLAIM FOR RELIEF
MALICIOUS ABUSE OF PROCESS UNDER 42 U.S.C. § 1983
26. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "268".
27. Denies each and every allegation contained in the paragraphs of the complaint
designated "269", "270", "271", "272", "273", "274" and "275".
1503398-lDOC
5
AS TO THE FIFTH CLAIM FOR RELIEF
EXCESSIVE FORCE UNDER 42 U.S.C. § 1983
28. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "276".
29. Denies each and every allegation contained in the paragraphs of the complaint
designated "277" and "278".
AS TO THE SIXTH CLAIM FOR RELIEF
FAILURE TO INTERCEDE UNDER 42 U.S.C. § 1983
30. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "279".
31. Denies each and
every allegation contained in the paragraphs of the complaint
designated "280", "281", "282" and "283".
AS TO THE SEVENTH CLAIM FOR RELIEF
UNLAWFUL SEARCH AND ENTRY UNDER 42 U.S.C. § 1983
32. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "284".
33. Denies each and every allegation contained in the paragraphs of the complaint
designated "285", "286", "287" and "288".
AS TO THE EIGHTH CLAIM FOR RELIEF
INVOLUNTARY CONFINEMENT UNDER 42 U.S.C. § 1983
34. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "289".
35. Denies each and every allegation contained in the paragraphs of the complaint
designated "290", "291", "292", "293", "294" and "295".
1503398-lDOC
6
AS TO THE NINTH CLAIM FOR RELIEF
CONSPIRACY TO VIOLATE PLAINTIFF'S CIVIL RIGHTS UNDER 42 U.S.C. § 1983
36. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "296".
37. Denies each and every allegation contained in the paragraphs of the complaint
designated "297", "298", "299", "300", "300i", "300ii", "300iii", "300iv", "300v", "300vi" and
"301 ".
AS TO THE TENTH CLAIM FOR RELIEF
VIOLATION OF DUE PROCESS UNDER 42 U.S.C. § 1983
38. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
in the paragraph ofthe complaint designated "second 300".
and realleged by the plaintiff
39. Denies each and every allegation contained in the paragraph of the complaint
designated "second 301".
AS TO THE ELEVENTH CLAIM FOR RELIEF
MUNICIPAL LIABILITY UNDER 42 U.S.C. § 1983
40. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "302".
41. Denies each and every allegation contained in the paragraphs of the complaint
designated "303", "305", "309", "310" and "311".
42. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated "304", 304i", "304ii",
"304iii", "304iv", "304v", "304vi", "304vii", "304viii", "second 304", "306", "301", "308",
"312", "312i", "312ii", "312ii", "312iv", "312v", "312vi"
1 503398_ 1.DOC
7
PENDANT STATE CLAIMS
43. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "313".
44. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated "314", "315", "316", "317"
and "318".
45. Denies each and every allegation contained in the paragraph of the complaint
designated "319".
AS TO THE FIRST CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
ASSAULT
46. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "320".
47. Denies each and every allegation contained in the paragraphs of the complaint
designated "321" and "322".
AS TO THE SECOND CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
BATTERY
48. Repeats and reiterates each and every denial and denial of knowledge or
information suffcient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "323".
49. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of
the complaint designated "324" and "325".
50. Denies each and every allegation contained in the paragraph of the complaint
designated "326".
1503398-lDOC
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AS TO THE THIRD CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
FALSE ARRST
51, Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "327".
52. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph ofthe complaint designated "328".
53. Denies each and every allegation contained in the paragraphs of the complaint
designated "329" and "330".
AS TO THE FOURTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
FALSE IMPRISONMENT
54. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
the complaint designated "331".
in the paragraph of
55. Denies each and every allegation contained in the paragraphs of the complaint
designated "332", "333", "334", "335" and "336",
AS TO THE FIFTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
INFLICTION OF EMOTIONAL DISTRESS
56. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "337",
57. Denies each and every allegation contained in the paragraphs of the complaint
designated "338", "341", "342", "343", "344" and "345",
58. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of
1503398-lDOC
the complaint designated "339" and "340".
9
AS TO THE SIXTH CLAIM FOR RELIEF UNDER N.Y. ST ATE LAW:
NEGLIGENT HIRING/TRAINING/SUPERVISION/RTENTION
New York)
(Defendant City of
59. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff in the paragraph of the complaint designated "346".
60. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated "347", "348", "349", "350",
"351", "352", "353", "354", "355", "356", "357", "358", "359", "360", "361", "362", "363",
"364", "365", "366", "367", "368" and "369".
AS TO THE SEVENTH CLAIM FOR
RELIEF UNDER
N.Y. STATE LAW:
MEDICAL MALPRACTICE
61. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "370".
62, Denies each and every allegation contained in the paragraphs of the complaint
designated "371", "372" and "373",
AS TO THE EIGHTH CLAIM FOR
RELIEF UNDER
N.Y. STATE LAW:
NEGLIGENT HIRING/TRAINING/SUPERVISION/RTENTION
(Defendant JHMC)
63. Repeats and reiterates each and every denial and denial of knowledge or
information sufficient to form a belief as to each of the allegations of the complaint reiterated
and realleged by the plaintiff
in the paragraph of
the complaint designated "374".
64. Denies each and every allegation contained in the paragraph of the complaint
designated "375", except begs leave to refer all questions of fact to the trier of fact and all
questions of law to the Court.
65, Denies each and every allegation contained in the paragraphs of the complaint
designated "376", "377", "378", "378A", "378B", "378C" and "378D",
1503398-lDOC 10
II
AS A FIRST AFFIRMATIVE DEFENSE
66. Defendant JAMAICA HOSPITAL MEDICAL CENTER denies liability, but if
liability is found against this defendant and the liabilty is found to be 50% or less of the total
liability assigned to all persons liable, then this defendant invokes the limits on liabilty for
noneconomic loss set forth in CPLR § 1601.
AS A SECOND AFFIRMATIVE DEFENSE
67. That defendant asserts the terms, provisions, limitations and rights contained in
§4545 of the CPLR.
AS A THIRD AFFIRMATIVE DEFENSE
68, Whatever injuries plaintiff may have sustained at the time and place alleged in the
complaint were caused in whole or in part or were contributed to by the culpable conduct and
want of care onthe part of
the plaintiff.
AS A FOURTH AFFIRMATIVE DEFENSE
69. That the complaint fails to state a cause or causes of action upon which relief can
be granted against defendant JAMAICA HOSPITAL MEDICAL CENTER.
AS A FIFTH AFFIRMATIVE DEFENSE
70, Defendant reserves its rights pursuant to CPLR 3017(c) to move to strike
plaintiffs AD DAMNUM clause and all other reference to specific amounts of monetary
damages in plaintiff complaint.
AS A SIXTH AFFIRMATIVE DEFENSE
71. Defendant objects to all punitive language, as defendant was not negligent,
careless nor reckless. Defendant reserves its right to strike any and all punitive language from the
Complaint and all future pleadings,
AS A SEVENTH AFFIRMATIVE DEFENSE
72. This Court lacks subject matter jurisdiction over this action.
AS AN EIGHTH AFFIRMATIVE DEFENSE
73. Defendant THE JAMAICA HOSPITAL MEDICAL CENTER is immune from
suit under the doctrines of qualified and absolute immunity.
1503398_1.DOC
11
AS A NINTH AFFIRMATIVE DEFENSE
74. Defendant THE JAMAICA HOSPITAL MEDICAL CENTER at all times acted
in good faith and with justification.
AS A TENTH AFFIRMATIVE DEFENSE
75, Defendant THE JAMAICA HOSPITAL MEDICAL CENTER was and is not a
state actor.
AS AN ELEVENTH AFFIRMATIVE DEFENSE
76. The actions by defendant THE JAMAICA HOSPITAL MEDICAL CENTER
were privileged under Aricle 9 of the Mental Hygiene Law.
WHEREFORE, defendant JAMAICA HOSPITAL MEDICAL CENTER demands
judgment dismissing the complaint herein, together with the costs and disbursements of this
action.
Dated: New York, New York
September 7, 2010
Yours, etc.
~~
MARTIN CLEAR WATER & BELL LLP
By: cz
Gregory J. Radomisli (GJR 2670)
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
York, NY 10017
New
(212) 697-3122
TO:
COHEN & FITCH, LLP
Attorneys for Plaintiff
225 Broadway, Suite 2700
New
York,
New
York 10007
(212) 374-9115
LAW OFFICES OF JON L. NORINSBERG
Attorney for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
(212) 791-5396
1503398-lDOC 12
ATTORNEY'S VERIFICATION
I, Gregory J. Radomisli, the undersigned, an attorney admitted to practice in the United
States District Court, Southern District of
New York, state that I am an attorney with the firm of
MARTIN CLEARWATER & BELL LLP, the attorneys of record for defendant JAMAICA
HOSPITAL MEDICAL CENTER 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 stated to be alleged 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 the defendant is that defendant has
its place of business outside the county where the affirmant has his offce.
The grounds of my belief as to all matters not stated upon my own knowledge are as
follows: review of all file materials in the offces of
MARTIN CLEARWATER & BELL LLP.
I affrm the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
September 7, 2010
By: ~~
Gregory J. Radomisli (GJR 2670)
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