Schoolcraft v. The City Of New York et al

Filing 295

DECLARATION of Gregory J. Radomisli in Opposition re: 290 MOTION to Amend/Correct .. Document filed by Jamaica Hospital Medical Center. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C part 1, # 4 Exhibit Exhibit C part 2, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E part 1, # 7 Exhibit Exhibit E part 2, # 8 Exhibit Exhibit E part 3, # 9 Exhibit Exhibit F, # 10 Exhibit Exhibit G, # 11 Exhibit Exhibit H, # 12 Exhibit Exhibit I, # 13 Exhibit Exhibit J, # 14 Exhibit Exhibit K, # 15 Exhibit Exhibit L, # 16 Exhibit Exhibit M, # 17 Exhibit Exhibit N, # 18 Exhibit Exhibit O, # 19 Exhibit Exhibit P, # 20 Exhibit Exhibit Q, # 21 Exhibit Exhibit R, # 22 Exhibit Exhibit S, # 23 Exhibit Exhibit T, # 24 Exhibit Exhibit U, # 25 Exhibit Exhibit V, # 26 Exhibit Exhibit X)(Osterman, Brian)

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Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 1 of 13 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: Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 2 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 3 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 4 of 13 "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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 5 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 6 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 7 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 8 of 13 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 8 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 9 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 10 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 11 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 12 of 13 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 Case 1:10-cv-06005-RWS Document 16 Filed 09/07/10 Page 13 of 13 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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