FILED: QUEENS COUNTY CLERK 11/05/2014 12:52 PM NYSCEF DOC. NO. 1 INDEX NO. 708230/2014 RECEIVED NYSCEF: 11/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NANCY J. RIVERA, as administratrix of the Estate of JOSEPH RIVERA, deceased, and NANCY J. RIVERA, individually, Plaintiff, -against- GLEN MARIN, HAN KIM, and MAIN STREET RADIOLOGY AT BAYSIDE, LLC, Defendants. Index N0.: CERTIFICATE PURSUANT TO CPLR 3012 a CHARLES J. MIRISOLA, JR., an attorney duly admitted to practice before the courts of this State, and a member of OSHMAN MIRISOLA, LLP, attorneys for Plaintiff, af?rm the following to be true under penalties of perjury: I certify that I have reviewed the facts of this case and have consulted with a physician licensed to practice in this State who I reasonably believe is knowledgeable in the relevant issues involved in this action, and that I have concluded, on the basis of such review and consultation, that there is a reasonable basis for the commencement of this action. Dated: New York, New York November 5, 2014 OS LLP Attorn "x ARLES .MIRISOLA, JR. Iainti ff 42 Broadway, 10th Floor New York, New York 10004 (212) 233-2100 Our File N0.: 700-72 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NANCY J. RIVERA, as administratrix of the Estate of JOSEPH RIVERA, deceased, and NANCY .RIVERA, individually, VERIFIED COMPLAINT Plaintiff, -against- Index N0.: GLEN MARIN, HAN KIM, and MAIN STREET RADIOLOGY AT BAYSIDE, LLC, Defendants. Plaintiff, complaining of defendants, by her attorneys OSHMAN MIRISOLA, LLP, respectfully alleges, upon information and belief: AS AND FOR A FIRST CAUSE OF ACTION 1. At all times herein mentioned, the cause of action arose in the County of Queens, State of New York. 2. That on March 5, 2014, NANCY J. RIVERA was appointed Administratrix of the Estate of JOSEPH RIVERA, deceased, by the Surrogate?s Court of Queens County, State of New York. 3. At all times herein mentioned, defendant GLEN MARIN, was a physician duly licensed to practice as such in the State of New York. 4. That on or about June of 2005 through December of 2008, JOSEPH RIVERA received medical care and treatment from defendant GLEN MARIN. 5. At all times herein mentioned, defendant HAN KIM, was a physician duly licensed to practice as such in the State of New York. 6. That on or about December 4, 2008, JOSEPH RIVERA underwent a CT scan of the neck with 10. ll 12. 13. 14. That on or about June 25, 2009, JOSEPH RIVERA underwent an MRI of the neck at MAIN STREET RADIOLOGY AT BAYSIDE, LLC. That on or about December 4-5, 2008, defendant HAN KIM interpreted JOSEPH CT scan of the neck with contrast. That on or about December 5, 2008, defendant HAN KIM transcribed and electronically signed a radiology report relating to the CT scan of the neck with contrast of JOSEPH RIVERA. At all times herein mentioned, defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, was and still is a limited liability corporation, duly organized and existing under and by virtue of the laws of the State of New York. . At all times herein mentioned, defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, was and still is a medical facility holding itself out to the public as providing competent and skillful physicians and other employees to treat and care for the sick and in?rm. At all times herein mentioned, defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, used and employed physicians, radiologists, nurses, and others who were authorized on behalf of such defendant to provide the necessary medical treatment to patients cared for at their medical facility. That by reason of the negligent medical care and treatment rendered to the plaintiff? decedent by the defendants jointly and/or severally, their agents, servants and/or employees, JOSEPH RIVERA was caused to sustain severe, irreparable and protracted personal injuries and death. Defendants were negligent, jointly and/or severally, in the services rendered for and on behalf of the plaintiff decedent; in failing to properly monitor the plaintiff decedent JOSEPH 15. RIVERA, in failing to provide proper medical care; in failing to timely diagnose plaintiffs decedent JOSEPH RIVERA as having cancer; in failing to properly interpret the December 4, 2008 CT scan of plaintiff decedent?s neck; in failing to review the CT scan report and appraise plaintiffs decedent JOSEPH RIVERA of the results; in failing to read the radiology report, dated December 5, 2008, concerning the CT scan of plaintiffs decedent?s neck; in failing to review radiographic results with decedent JOSEPH in failing to advise plaintiffs decedent regarding CT scan results; in failing to advise decedent JOSEPH RIVERA as to the results of radiographic images; failing to heed plaintiffs decedent?s complaints; in failing to recognize that the lump in plaintiffs decedent?s neck could be cancer; in failing to timely treat plaintiffs decedent?s throat cancer; improperly monitoring and managing the plaintiffs decedent JOSEPH throat cancer; in failing to adequately and properly test the plaintiff ?s decedent JOSEPH RIVERA, for cancer; in failing to properly review and act upon radiology studies; in failing to timely conduct needle biopsy; in failing to send plaintiffs decedent for a consultation; in failing and neglecting to use reasonable care in the services rendered for and on behalf of the plaintiffs decedent; in negligently and carelessly departing from accepted practices and services rendered for and on behalf of the plaintiffs decedent; in performing contraindicated procedures; in failing to perform indicated procedures. As a result of the negligence and malpractice of the defendants, jointly and/or severally, their agents, servants and/or employees, plaintiffs decedent?s cancer of the throat was not treated which was a proximate cause of decedent being diagnosed with Stage IV cancer with no chance of cure. 16. 17. 18. 19. That this cause of action comes within one or more of the exceptions of CPLR ?l602; in that defendants were acting recklessly. That plaintiff has been damaged in this cause of action in a sum exceeding the jurisdictional limits of all lower courts. AS AND FOR A SECOND CAUSE OF ACTION Plaintiff repeats, reiterates and realleges all of the allegations contained in paragraphs above numbered and designated as through inclusive, as if set forth more fully herein at length. Defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, prior to the granting or renewing of employment of defendant HAN KIM, the physicians, radiologist, nurses and others involved in plaintiffs decedent?s care, ignored and/or failed to investigate the qualifications, competence, capacity, abilities and capabilities of said doctors, residents, nurses and other employees including, but not limited to, obtaining the following information: patient grievances, negative health care outcomes, incidents injurious to patients, medical malpractice actions commenced against said persons, including the outcome thereof, any history of association, privilege and/or practice at other institutions, and discontinuance of said association, employment, privilege and/or practice at said institution, and any pending professional misconduct proceedings in this state or another state, the substance of the allegations in such proceedings and any additional information concerning such proceedings and the ?ndings of the proceedings and defendant MAIN STREET ignored and/or failed to make suf?cient inquiry of the physicians, nurses and/or employees and institution which should have and did have information relevant to the capacity, capability, 20. 21. 22. 23. 24. ability and competence of said persons rendering treatment. Had defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, made the above stated inquiry or, in the alternative, had it reviewed and analyzed the information obtained in a proper manner, employment would not have been granted and/ or renewed. By reason of the failure of defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, to meet the aforementioned obligation, plaintiffs decedent JOSEPH RIVERA was treated by physicians, nurses and/or other employees at defendant medical of?ce, who were lacking the requisite skills, abilities, competence and capacity, as a result of which plaintiff sustained injuries and damages resulting in his ultimate death, as herein alleged. That the defendant MAIN STREET RADIOLOGY AT BAYSIDE, LLC, failed and/0r neglected to advise and/or inform plaintiff?s decedent JOSEPH RIVERA in such a manner so as to permit him to make a knowledgeable evaluation, and did fail to make said plaintiffs decedent reasonably aware of the foreseeable risks, hazards and dangers inherent in the medical treatment rendered to the plaintiffs decedent; that said defendant failed to receive an informed consent therefore, failed to advise said plaintiffs decedent of the purpose of and the advantage of the procedures to be employed, or the lack thereof, the risk to health and life of proceeding or not proceeding, the available alternatives and the risks and advantages involved therein. That by reason of the foregoing, plaintiff has been damaged in this cause of action in a sum which exceeds the jurisdictional limits of all lower courts. AS AND FOR A THIRD CAUSE OF ACTION Plaintiff repeats, reiterates and realleges all of the allegations contained in paragraphs above 25. 26. 27. 28. 29. 30. numbered as through"25" inclusive as if set forth more fully herein. That the defendant, jointly and/ or individually, violated New York State Public Health Law ?2805-d, failed and/or neglected to advise and/or inform plaintiff? decedent, in such a manner so as to permit him to make a knowledgeable evaluation, and did fail to make said plaintiff?s decedent reasonably aware of the foreseeable risks, hazards and dangers inherent in the medical and/or surgical treatment rendered to the plaintiffs decedent; that said defendants failed to receive an informed consent therefore, failed to advise said plaintiff? decedent of the purpose of and the advantage of the procedures to be employed, or the lack thereof, the risk to health and life of proceeding or not proceeding, the available alternatives and the risks and advantages involved therein. That by reason of the foregoing, plaintiff has been damaged in this cause of action in a sum which exceeds the jurisdictional limits of all lower courts. AS AND FOR A FOURTH CAUSE OF ACTION Plaintiff repeats, reiterates and realleges all of the allegations contained in paragraphs above numbered as through?26? inclusive as if set forth more fully herein. As a result of the injuries suffered by plaintiffs decedent as set forth above, JOSEPH RIVERA died on November 10, 2012. Pursuant to the Estate Powers Trust and Trust Laws of the State of New York and all other legal remedies provided by the laws of the State of New York, plaintiff sets forth this action for the wrongful death of plaintiff? decedent as a result of the acts and omissions of the defendants as set forth above and below. As a result of the wrongful death of the decedent, plaintiff, the estate of decedent, its distributees and legatees sustained economic and pecuniary loss and loss of companionship, loss of guidance, loss of consortium, and loss of affection. 31. That this cause of action comes within one or more of the exception of CPLR ?1602; in that defendants were acting recklessly. 32. That the plaintiff has been damaged in this cause of action in a sum exceeding the jurisdictional limits of all lower courts. WHEREFORE, plaintiff demands judgment against the defendants in a sum which exceeds the jurisdictional limits of all lower courts on each cause of action, together with the interests, costs and disbursements of this action. Dated: New York, New York November 5, 2014 OSHMA Na LLP 1 i' By: J. MIRISOLA, JR. A ys "or Plaintiff 42 Broadway, 10th Floor New York, New York 10004 (212) 233-2100 Our File No.: 700-72 VERIFICATION STATE OF NEW YORK COUNTY OF NEW YORK 55: CHARLES J. MIRIS OLA, JR., an attorney duly admitted to practice before the Courts of the State of New York, af?rms the following to be true, under penalties of perjury: I am a partner with the law ?rm of OSHMAN MIRISOLA, LLP, attorneys of record for the plaintiff in the within action. I have read the foregoing VERIFIED COMPLAINT, and know the contents thereof, and the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, I believe it to be true. This veri?cation is made by myself and not by the plaintiff because the plaintiff are not in the county in which your deponent maintains his of?ce. The grounds of my belief as to all matters not stated upon my knowledge are based upon the books, records and documents in my possession. Af? r111edonjhe;Wovember, 2014 J. MIRISOLA, JR. INDEX NO.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NANCY J. RIVERA, ad Administratrix of the Estate of JOSEPH RIVERA, deceased, and NANCY J, RIVERA, individually, Plaintiff, -against? GELN MARIN, HAN KIM, and MAIN STREET RADIOLOGY AT BAYSIDE, LLC, Defendants. SUMMONS COMPLAINT OSHMAN MIRISOLA, LLP Attorneys for Plaintiff? 42 Broadway, 10th ?oor New York, New York 10004 (212) 233-2100 Attorney: Charles J. Mirisola, Esq. To: Due and timely service is hereby admitted New York, NY. 2014 Esq. Attorney for