Schoolcraft v. The City Of New York et al

Filing 536

AMENDED ANSWER to 103 Amended Complaint,,,,,,, with JURY DEMAND. Document filed by Lillian Aldana-Bernier. (Brady, Bruce)

OUR FILE NO.: 090.155440
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,

Index No.: 10-CIV-6005

Plaintiff,
- against AMENDED ANSWER
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
TO SECOND AMENDED
MARINO, Tax Id. 873220, Individually and in his Official
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 AJOHN
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 ANYPD
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 AJOHN DOE@ # 1-50, Individually
and in their Official Capacity (the name John doe being
fictitious, as the true names are presently unknown),
Defendants.
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COUNSELORS:
PLEASE TAKE NOTICE, that the defendant, DR. LILIAN ALDANA-BERNIER,
as and for her Amended 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 A1" and A2".
AS AND FOR THE JURISDICTION
2.

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

allegations contained in paragraph A3".
AS AND FOR THE VENUE
3.

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

allegations contained in paragraph A4".
AS AND FOR THE JURY DEMAND
4.

Admits the allegation contained in paragraph A5" 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 A6", “7”, “8”, “9”, A10", A11", A12", A13", A14", A15",
A16", A17", “18”, “19”, A20", “21” and “24”.
7.

Denies the allegations contained in paragraph A22@, 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 A25", A26", A27", A28", A29", A30", A31", A32", A33",
A34", A35", A36", A37", A38", A39", A40", A41", A42", A43", A44", A45", A46", A47", A48', A49",
A50", A51", A52", A53", A54", A55", A56", A57", A58", A59", A60", A61", A62", A63", A64", A65",
A66", A67", A68", A69", A70", A71", A72", A73", A74", A75", A76", A77", A78", A79", A80", A81",
A82", A83", A84", A85", A86", A87", A88", A89", A90", A91", A92", A93", A94", A95", A96", A97",
A98", A99", A100", A101", 102", A103", A104", A105", A106", A107", A108", A109", 110", A111",
A112", A113", A114", A115", A116", A117", A118", A119", A120", A121", A122", A123", A124",
A125", A126", A127", A128", A129", A130", A131", A132", A133", A134", A135", A136", A137",
A138", A139", A140", A141", A142", A143", A144", A145", A146", A147", >148", A149", A150",
A151", A152", A153", A154", A155", A156", >157", A158", A159", A160", A161", A162", A163",
A164", A165", A166", A167", A168", A169", A170", A171", A172", A173", “174”, A175", A176",
A177", A178", “179”, A180", A181", A182", A183", A184", “185”, “186”, A187", A188", A189",
“190”, A191", A192", “193”, “194”, A197", A198", A199", A201", A207", A208", A209", A210",
A211", A212", A215", A216", A217", A218", A219", A220", A221", A222", A223", A224", A225",
A226", A227", A228", A229", A230", A231", A232", A233", A234", A235", >236", A237", “238”,
“239”, “240”, “241”, “242”, “243”, “244”, “245”, “256”, “247”, “248”, “249”, “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 A256”, “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 A340 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 A345".

32.

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

allegations contained in paragraphs A343” 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 A348” and “349”.

35.

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

allegation contained in paragraph A347".
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
as 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 A390”, “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 A394”, “395” and “396".

47.

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

allegation contained in paragraph A397".
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
therefor.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
That in the event of any verdict of judgment on behalf of the plaintiff, the
answering defendant is entitled to a set-off or credit pursuant to N.Y. General
Obligations Law § 15-108 and any other applicable provision of law with respect to the
full value of the Rule 68 Offer of Judgment made by the City of New York and accepted
by the plaintiff and for payments made to the plaintiff in any other companion actionsor
claim arising out of the same set of events as pleaded herein.
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 9, 2015
Yours, etc.,
CALLAN, KOSTER, BRADY & BRENNAN, LLP

______________________________________
By: BRUCE M. BRADY, ESQ. (BMB4816)
A Member of the Firm
Attorneys for Defendant
DR. LILIAN ALDANA-BERNIER
One Whitehall Street, 10th Floor
New York, New York 10004
[phone]