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)
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 1 of 14
GJR/A
667-82153
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---- ---------- --- - - ----- ---- ------ ---- --- -- - ---- ------ -------- -- ---- - J(
ADRIAN SCHOOLCRAFT,
VERIFIED ANSWER TO
Plaintiff,
AMENDED COMPLAINT
Civil Action No.:
10 CIV 6005 (RWS)
-against-
THE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARIO, Tax Id. 873220, Individually
and in his Official Capacity, ASSISTANT CHIEF
PATROL BOROUGH BROOKLYN NORTH
GERALD NELSON, Tax Id. 912370, Individually and
in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually
and in his Offcial 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 Offcial Capacity,
SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax
Id. 915354, Individually and in his Offcial Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id.
885374, Individually and in his Official Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004,
ANDP.O.'s "JOHN DOE" #1-50, Individually and in
their Official 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,
Individuallv and in her Official CaDacitv and
JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and
în their Offcial Capacity (the name. John Doe being
fictitious, as the true names are presently unkown),
JURY TRIAL
DEMANDED
Defendants.
------- - -- - --- - --- --- -- --------------- ---------------- ---- -- ---- ---- - J(
Defendant JAMAICA HOSPITAL MEDICAL CENTER, by its 'attorneys, MARTIN
CLEAR WATER & BELL LLP, answers the plaintiff s amended complaint as follows, upon
information and belief:
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 2 of 14
PRELIMINARY STATEMENT
1. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraph of the amended complaint designated "I", except begs
leave to refer all questions of fact to the trier of fact and all questions of law to the Court.
2. Denies each and every allegation contained in the paragraph of the amended
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 amended complaint designated "3", except begs
leave to refer all questions of fact to the trier of fact and all questions of law to the Cour.
VENUE
4. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraph of the amended 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 suffcient to form a belief as to each and every
allegation contained in the paragraph of the amended complaint designated "5", except begs
leave to refer all questions of fact to the trier of fact and all questions of law to the Cour.
PARTIES
h Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the amended complaint designated "6", "7", "8", "9",
"10", "11" and "12".
7. Denies each and every allegation contained in the paragraph of the amended
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
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 3 of 14
New York and operates a facility located at 8900 Van Wyck Expressway, Jamaica,
the State of
New York.
8. Denies each and every allegation contained in the paragraph of the amended
complaint designated "15", 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
New York and operates a facility located at 8900 Van Wyck Expressway, Jamaica,
the State of
New York and begs leave to refer all questions of fact to the trier of fact and all questions of law
to the Cour.
9. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the amended 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 amended
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 amended
complaint designated "20".
FACTUAL BACKGROUND
12.
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'-
Denies knowledge or information suffcient to form a belief as to each and every
in the mirauranhs of the amended comDlaint desiimated "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",
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Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 4 of 14
"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", "199",
"206", "207", "208", "209", "210", "212", "213", "214", "215", "216", "217", "218", "219",
"220", "221", "222", "223", "224", "225", "226", "227", "228", "229", "230", "231", "232",
"233", "234", "235", "236", "237" and "238".
13. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "165", "167", "170" and "197", except begs leave to refer all questions of
fact to the trier of fact and all questions of law to the Cour.
14. Denies knowle~ge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of the amended complaint designated "166", "168",
"181" and "182" except begs leave to refer all questions of fact to the trier of fact and all
questions of law to the Cour.
15. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "169", "171", "178", "183", "185", "186", "187", "188", "189", "190",
"191", "193", "194", "195", "196", "203", "204", "205", "211", "213", "239" and "240".
16. Denies each and every allegation contained in the paragraphs of the amended
,.
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'''174'' "17';" "176" "177" "179" "180" "184" and "192" exceDtadmits
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.
17. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the amended complaint designated "198", "200", "201"
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 5 of 14
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 suffcient to form a belief as to each of the allegations of the amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"241" .
19. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "242", "243", "244", "245" and "246".
AS TO THE SECOND CLAIM FOR RELIEF
FALSE ARRST UNDER 42 U.S.C. § 1983
20. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"247" .
21. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "248" and "249".
MALICIOUS ABUSE OF PROCESS UNDER 42 U.S.c. § 1983
information sufficient to form a belief as to each of the allegations of the amended complaint
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 6 of 14
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"250" .
23. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "251", "252", "253", "254", "255" and "256".
AS TO THE FOURTH CLAIM FOR RELIEF
EXCESSIVE FORCE UNDER 42 U.S.C. § 1983
24. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"257".
25. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "258" and "259".
AS TO THE FIFTH CLAIM FOR RELIEF
FAILURE TO INTERCEDE UNDER 42 U.S.C. § 1983
26. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"260" .
27. Denies each and every allegation contained in the paragraphs of the amended
AS TO THE SIXTH CLAIM FOR RELIEF
UNLAWFUL SEARCH AND ENTRY 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 amended complaint
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 7 of 14
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"265" .
29. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "266", "267", "268" and "269".
AS TO THE SEVENTH CLAIM FOR RELIEF
INVOLUNTARY CONFINEMENT 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"270".
31. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "271", "272", "273", "274", "275" and "276".
AS TO THE EIGHTH CLAIM FOR RELIEF
CONSPIRACY TO VIOLATE PLAINTIFF'S CIVIL RIGHTS 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"277".
33. Denies each and every allegation contained in the paragraphs of the amended
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AS TO THE NINTH CLAIM
FOR RELIEF
VIOLATION OF DUE PROCESS UNDER 42 U.S.C. § 1983
34. 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 amended complaint
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 8 of 14
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"283".
35. Denies each and every allegation contained in the paragraph of the amended
complaint designated "284".
AS TO THE TENTH CLAIM FOR RELIEF
UNDER
MUNICIPAL LIABILITY
42 U.S.C. § 1983
36. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"285" .
37. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "286", "289", "293", "294" and "295".
38. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of the amended complaint designated "287", "288",
"290", "291", "292" and "296".
PENDANT STATE CLAIMS
39. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"297" .
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allegation contained in the paragraphs of the amended complaint designated "298", "299",
"NO", "~~302".
41. Denies each and every allegation contained in the paragraph of the amended
complaint designated "303".
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 9 of 14
AS TO THE FIRST CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
AS
SAUL T
42. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"304" .
43. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "305" and "306".
AS TO THE SECOND CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
BATTERY
44. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"307" .
45. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of
the amended complaint designated "308" and "309".
46. Denies each and every allegation contained in the paragraph of the amended
complaint designated "310".
AS TO THE THIRD CLAIM FOR RELIEF UNDER N.Y. ST ATE LAW:
FALSE ARRST
information suffcient to form a belief as to each of the allegations of the amended complaint
reiterated and realleged by the 12laintiff in the 12aragraph of the amended comRlaint designated
"311" .
48. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraph of the amended complaint designated "312".
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 10 of 14
49. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "313" and "314".
AS TO THE FOURTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
FALSE IMPRISONMENT
50. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"315".
51. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "316", "317", "318", "319" and "320".
AS TO THE FIFTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
INFLICTION OF EMOTIONAL DISTRESS
52. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"321 ".
53. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "322", "325", "326", "327", "328" and "329".
54. Denies knowledge or information suffcient to form a belief as to each and every
allegation contained in the paragraphs of
the amended complaint designated "323" and "324".
NEGLIGENT HIRING/TRAINING/SUPERVISION/RTENTION
(Defendant City of New York)
information sufficient to form a belief as to each of the allegations of the amended complaint
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 11 of 14
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"330".
56. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the amended complaint designated "331", "332",
"333", "334", "335", "336", "337", "338", "339", "340", "341", "342", "343", "344", "345",
"346", "347", "348", "349", "350", "351", "352" and "353".
AS TO THE SEVENTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
MEDICAL MALPRACTICE
57. 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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"354".
58. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "355", "356" and "357".
AS TO THE EIGHTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
NEGLIGENT HIRING/TRAINING/SUPERVISION/RTENTION
(Defendant JHMC)
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 amended complaint
reiterated and realleged by the plaintiff in the paragraph of the amended complaint designated
"i l:R"
60. Denies each and every allegation contained in the paragraph of the amended
complaint designated "359", except begs leave to refer all.
questions of
fact to the trier of
fact and
all questions of law to the Cour.
61. Denies each and every allegation contained in the paragraphs of the amended
complaint designated "360", "361" and "362".
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 12 of 14
AS A FIRST AFFIRMATIVE DEFENSE
62. Defendant JAMAICA HOSPITAL MEDICAL CENTER denies liabilty, but if
liabilty 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
63. That defendant asserts the terms, provisions, limitations and rights contained in
§4545 of the CPLR.
AS A THIRD AFFIRMATIVE DEFENSE
may have sustained at the time and place alleged in the
64. Whatever injuries plaintiff
amended complaint were caused in whole or in par or were contributed to by the culpable
conduct and want of care on the par of the plaintiff.
AS A FOURTH AFFIRMATIVE DEFENSE
65. That the amended 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
66. 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 nlaintiff amended comDlaint.
AS A SIXTH AFFIRMATIVE DEFENSE
67. 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
amended complaint and all future pleadings.
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 13 of 14
AS A SEVENTH AFFIRMATIVE DEFENSE
68. This Cour lacks subject matter jurisdiction over this action.
AS AN EIGHTH AFFIRMATIVE DEFENSE
69. Defendant THE JAMAICA HOSPITAL MEDICAL CENTER is immune from
suit under the doctrines of qualified and absolute immunity.
AS A NINTH AFFIRMATIVE DEFENSE
70. Defendant THE JAMAICA HOSPITAL MEDICAL CENTER at all times acted
in good faith and with justification.
AS A TENTH AFFIRMATIVE DEFENSE
71. Defendant THE JAMAICA HOSPITAL MEDICAL CENTER was and is not a
state actor.
AS AN ELEVENTH AFFIRMATIVE DEFENSE
72. The actions by defendant THE JAMAICA HOSPITAL MEDICAL CENTER
were privileged under Article 9 of the Mental Hygiene Law.
WHEREFORE, defendant JAMAICA HOSPITAL MEDICAL CENTER demands
judgment dismissing the amended complaint herein, together with the costs and disbursements of
this action.
Dated: New York, New York
October 6, 2010
. Yours, etc.
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Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, NY 10017
(212) 697-3122
1518153-1
Case 1:10-cv-06005-RWS Document 25 Filed 10/06/10 Page 14 of 14
ATTORNEY'S VERIFICATION
I, Gregory J. Radomisli, the undersigned, an attorney admitted to practice in the cours of
New York State, 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 VERIFIED ANSWER TO AMENDED
COMPLAINT 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 affrmant has his offce.
The grounds of my belief as to all matters not stated upon my own knowledge are as
follows: review of all fie materials in the offices of
MARTIN CLEARWATER & BELL LLP.
I affirm the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
October 6, 2010
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By: /-
Gregory J. Radomisli
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