Schoolcraft v. The City Of New York et al

Filing 330

DECLARATION of Paul F. Callan in Support re: 329 MOTION for Summary Judgment .. Document filed by Lillian Aldana-Bernier. (Attachments: # 1 Exhibit 2nd amended complaint, # 2 Exhibit answer to 2nd amended complaint)(Callan, Paul)

OUR FILE NO.: 090.155440
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X Index No.: 10-CIV-6005
ADRIAN SCHOOLCRAFT,
Plaintiff,
- against -

CALLAN, KOSTER,

THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
ANSWER TO SECOND
MARINO, Tax Id. 873220, Individually and in his Official
AMENDED COMPLAINT
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 Official Capacity, CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually ECF CASE
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, stg.
Frederick sawyer, Shield No. 2576, Individually and in his
Official Capacity, SERGEANT KURT DUNCAN, Shield No.
2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, and P.O.'s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are
presently unknown) (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
CANTER EMPLOYEE'S "JOHN DOE" # 1-50, Individually
and in their Official Capacity (the name John doe being
fictitious, as the true names are presently unknown),

BRADY & BRENNAN, LLP
COUNSELORS AND

Defendants.

ATTORNEYS AT LAW

X

One Whitehall Street
New

York, New York 10004

212 -248-8,800

COUNSELORS:
PLEASE TAKE NOTICE, that the defendant, DR. LILIAN ALDANA-BERNIER,
as and for her answer to the plaintiff's second Amended Complaint, respectfully alleges

the following:
AS AND FOR THE PRELIMINARY STATEMENT
1.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "1" and "2".
AS AND FOR THE JURISDICTION
2.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph "3".
AS AND FOR THE VENUE
3.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph "4".
AS AND FOR THE JURY DEMAND
4.

Admits the allegation contained in paragraph "5" of the Complaint.
AS AND FOR THE PARTIES

5.

Denies allegation contained in paragraph "23".

6.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "6", "7", "8", "9", "10", "11", "12", "13", "14", "15",
"16", "17" "18", "19" "20" "21" and "24".
7.

Denies the allegations contained in paragraph "22", except admits that, at

all times mentioned in the Complaint, defendant, DR. LILIAN ALDANA-BERNIER, was
and still is a physician duly licensed to practice medicine in the State of New York, and
was and is duly qualified to render proper and adequate medical services to her
patients.
AS AND FOR THE FACTUAL BACKGROUND
8.

Denies the allegations contained in paragraphs "195", "196", "200", "202",

"203", "204", "205", "206", "213", "214", "253" and "254".
9.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "25", "26", "27", "28", "29", "30", "31", "32", "33",
11 3411 11 3511 113611 113711 63811 113911 "4011 "416 , 114.211 114311 "4411 11 456 "4.611, 114711 114.81 11 4.911 ,
115011 11 516 "52" 115311 , 11 5411 115511 115611 11 5711, "58" 115911 116011 "61" 11 62" 6 6311, 116411, 116511
"66", "67" "6811, 116911 "70" "71", 11 7211, "73" "74", 11 7511, 11 7611, "7711, "78" "79", "80", "8111,
118211 6 836, 11 846 11 85", 11 866 , "87" 6 886, 6 8911 , 6 906 11 91" "92" 11 936 "9411 119511, 119611 69711,

1i98", f199", 11100", "101", 102", 1{103", "104", 11105", "106", 11 107", "108", "109", 110", "111",
11 1,12", 11 113", 11 114", "115", "116", "117", 11 118", 11 119", 6 120", "121", "122", 11 123", "124",
"125", 11 126", "127", "128", "129", 6 130", "131", "132", "133", 11 134", 11 135", "136", 11 137",
"138", "139", "140", "141", "142", 11 143", 11 144", "145", "146", 11 147", '148", "149", "150",
"151", "152", "153", "154", "155", "156", '157", "158", "159", "160", "161", "162", 1`163",
"164", "165", "166", "167", "168", "169", "170", "171", "172", "173", "174", "175", "176",
"177", "178", "179", "180", "181", "182", "183", "184", 11 185", "186", "187", "188", "189",

1`190", "191", "192", "193", 11 194", "197", "198", "199", "201", 11 207", "208", "209", "210",
"211", "212", "215", "216", "217", "218", "219", "220", "221", 11 222", "223", 11 224", "225",
"226", "227", "228", "229", "230", "231", "232", "233", "234", "235", '236", "237" "238",
"239" 1`240" "241", 11242" 11243" 11244" "245" 11256", "247", 11248", 11249" "250" "251" and
"252".
AS AND FOR THE FIRST CLAIM FOR RELIEF
DEPRIVATION OF FEDERAL RIGHTS UNDER 42 U.S.C. § 1983
10.

Answering the subdivision thereof numbered "255", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.

11.

Denies the allegations contained in paragraphs "256", "257", "258", "259"

and "260".
AS AND FOR THE SECOND CLAIM FOR RELIEF
VIOLATION OF FIRST AMENDMENT RIGHTS UNDER 42 U.S.C. § 1983
12.

Answering the subdivision thereof numbered "261", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
13.

Denies the allegations contained in paragraphs "262", "263", "264", "265",

"266" "267" "269", "270" "271", "272" "273" "274" "275" "276" and "277".
14.

Denies knowledge or information sufficient to form a belief as to the

allegation contained in paragraph "268".
AS AND FOR A THIRD CLAIM FOR RELIEF
FALSE ARREST UNDER 42 U.S.C. § 1983
15.

Answering the subdivision thereof numbered "278", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
16.

Denies the allegations contained in paragraphs "279" and "280".
AS AND FOR A FOURTH CLAIM FOR RELIEF
MALICIOUS ABUSE OF PROCESS UNDER 42 U.S.C. § 1983

17.

Answering the subdivision thereof numbered "281", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
18.

Denies the allegations contained in paragraphs "282", "283", "284", "285",

"286" and "287".

AS AND FOR A FIFTH CLAIM FOR RELIEF
EXCESSIVE FORCE UNDER 42 U.S.C. § 1983
19.

Answering the subdivision thereof numbered "288", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
20.

Denies the allegations contained in paragraphs "289" and "290".
AS AND FOR A SIXTH CLAIM FOR RELIEF
FAILURE TO INTERCEDE UNDER 42 U.S.C. § 1983

21.

Answering the subdivision thereof numbered "291", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
22.

Denies the allegations contained in paragraphs "293" and "295".
And for a response to the allegations contained in paragraph "292" and

"294", the defendant denies and refers all questions of law to the Trial Court.
AS AND FOR A SEVENTH CLAIM FOR RELIEF
UNLAWFUL SEARCH & ENTRY UNDER 42 U.S.C. § 1983
23.

Answering the subdivision thereof numbered "296", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
24.

Denies the allegations contained in paragraphs "297", "298", "299" and

"300".
AS AND FOR AN EIGHTH CLAIM FOR RELIEF
INVOLUNTARY CONFINEMENT PROCESS UNDER 42 U.S.C. § 1983
25.

Answering the subdivision thereof numbered "301", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect

as if again set forth at length herein.
26.

Denies the allegation contained in paragraph "338".

27.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "333", "334", "335", "336" and "337".
AS AND FOR THE FIRST CLAIM FOR RELIEF
UNDER N.Y. STATE LAW: ASSAULT
28.

Answering the subdivision thereof numbered "339", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
29.

Denies the allegations contained in paragraphs "340 and "341".
AS AND FOR THE SECOND CLAIM FOR RELIEF
UNDER N.Y. STATE LAW: BATTERY

30.

Answering the subdivision thereof numbered "342", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
31.

Denies the allegation contained in paragraph "345".

32.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "343" and "344".
AS AND FOR THE THIRD CLAIM FOR RELIEF
UNDER N.Y. STATE LAW: FALSE ARREST
33.

Answering the subdivision thereof numbered "346", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
34.

Denies the allegation contained in paragraph "348" and "349".

35.

Denies knowledge or information sufficient to form a belief as to the

allegation contained in paragraph "347".
AS AND FOR THE FOURTH CLAIM FOR RELIEF
UNDER N.Y. STATE LAW: FALSE IMPRISONMENT
36.

Answering the subdivision thereof numbered "350", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
37.

Denies the allegations contained in paragraphs "351", "353", "354" and

38.

Denies knowledge or information sufficient to form a belief as to the_

"355".

allegation contained in paragraph "352".
AS AND FOR THE FIFTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
39.

Answering the subdivision thereof numbered "356", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
a8 if again set forth at length herein.
40.

Denies the allegations contained in paragraphs "357", "358", "359", "360",

"361", "362", "363" and "364".
AS AND FOR THE SIXTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
NEGLIGENT HIRING/TRAINING/SUPERVISION/RETENTION
(Defendant City of New York)
41.

Answering the subdivision thereof numbered "365", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
42.

Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraphs "366", "367", "368", "369", "370", "371", "372", "373",

"374", "375, "376" "377" "378" "379", "380", "381", "382", "383", "384", "385" "386",
"387" and "388".
AS AND FOR THE SEVENTH CLAIM FOR RELIEF UNDER
N.Y. STATE LAW: MEDICAL MALPRACTICE
43.

Answering the subdivision thereof numbered "389", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
44.

Denies the allegations contained in paragraphs "390", "391" and "392".

AS AND FOR THE EIGHTH CLAIM FOR RELIEF UNDER N.Y. STATE LAW:
NEGLIGENT HIRING/TRAINING/SUPERVISION/RETENTION
(Defendant JHMC)
45.

Answering the subdivision thereof numbered "393", repeats and reiterates

each and every denial or admission hereinbefore made with the same force and effect
as if again set forth at length herein.
46.

Denies the allegations contained in paragraphs "394", "395" and "396".

47.

Denies knowledge or information sufficient to form a belief as to the

allegation contained in paragraph "397".
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
That the plaintiff herein was guilty of culpable conduct, including contributory
negligence and comparative negligence, which said conduct bars plaintiff's right of
recovery in proportion to which the said culpable conduct or negligence attributable to
plaintiff bears the culpable conduct or negligence which caused the damages, if any, or
the occurrence complained of by plaintiff was caused in whole or in part by the
assumption of risk of the plaintiff.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The defendant reserves the right to claim the limitations of liability pursuant to the
terms of Article 16 of the CPLR.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
In the event the plaintiff recovers a verdict or judgment against the answering
defendant, then the verdict or judgment must be reduced pursuant to CPLR 4545(c) by
those amounts which have been, or will, with reasonable certainty, replace or indemnify
plaintiff, in whole or in part, for any past or future claimed economic loss, from any
collateral source such as Insurance, Social Security, Workers' Compensation or
employee benefit programs.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
The Complaint fails to include a Certificate of Merit as required by CPLR §
3012(a), and therefore the seventh claim for relief under N.Y. State Law must be
dismissed.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
At all times mentioned in the Complaint, the defendant, DR. LILIAN
ALDANA-BERNIER, was acting as a private citizen, and not under color of State Law,
and consequently the plaintiff's First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth and Tenth Claims for Relief, all based upon violations of 42 U.S.C. § 1983,
are legally insufficient and must be dismissed.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The evaluation and treatment provided by the defendant, DR. LILIAN
ALDANA-BERNIER, were undertaken pursuant to the New York State Mental Hygiene

Law and thus is protected by a privilege under the law and has immunity from liability
thbrefor.
JURY DEMAND
Defendant, DR. LILIAN ALDANA-BERNIER, demands a trial by jury.
WHEREFORE, the defendant, DR. LILIAN ALDANA-BERNIER, demands
judgment dismissing the Complaint against her, together with costs and disbursements
of this action and attorneys' fees.
Dated:

New York, New York
October 22, 2012
Yours, etc.,
CALLAN, KOSTER, BRADY & BRENNAN, LLP

7>_€,
€,,t,
By: BRUCE M. BRADY, E
A Member of the Firm
Attorneys for Defendant
DR. LILIAN ALDANA-BERNIER
One Whitehall Street, 10th Floor
New York, New York 10004
[phone]
TO:

JOSHUA F. FITCH, ESQ.
COHEN & FITCH, LLP
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279
[phone]
LAW OFFICES OF JON L. NORINSBERG, ESQ.
Attorneys for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
[phone]
MARTIN, CLEARWATER & BELL, LLP
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, New York 10017-5842
[phone]

B4816)

IVONE, DEVINE & JENSEN, LLP
Attorneys for Defendant
ISAK ISAKOV
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
[phone]
MICHAEL A. CARDOZO, ESQ.
CORPORATION COUNSEL
Attorneys for Defendant
NEW YORK CITY POLICE DEPARTMENT
100 Church Street, Room 2-124
New York, New York 10007
[phone]

AFFIDAVIT OF SERVICE
STATE OF NEW YORK
: SS.:
COUNTY OF NEW YORK
CAMILLE D. PALMER, being duly sworn, deposes and says:
I am not a party to the action, I am over 18 years of age and I am employed at
One Whitehall Street, New York, New York 10004.
On October 22, 2012, I served a true copy of the annexed ANSWER TO
SECOND AMENDED COMPLAINT by mailing same in a sealed envelope with postage
prepaid in an official depository of the U.S. Postal Service within the State of New York
addressed to:
JOSHUA F. FITCH, ESQ.
COHEN & FITCH, LLP
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279
[phone]
LAW OFFICES OF JON L. NORINSBERG, ESQ.
Attorneys for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
[phone]
MARTIN, CLEARWATER & BELL, LLP
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, New York 10017-5842
[phone]
IVONE, DEVINE & JENSEN, LLP
Attorneys for Defendant
ISAK ISAKOV
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
[phone]

MICHAEL A. CARDOZO, ESQ.
CORPORATION COUNSEL
Attorneys for Defendant
NEW YORK CITY POLICE DEPARTMENT
100 Church Street, Room 2-124
New York, New York 10007
[phone]

__.

CAM LE i. PALMER
Sworn to before me this
22nd day of October, 2012

eilt

NOTA

PUBLIC

KELLY FILBERT
Notary Public, State of Nevi Yottt
01E15026463
Ovalified in Kings County
Comisaten. Expires Aprik 18, .2014