Aykac v. City of New York

• Decision Date: 20 October 2022
• Docket Number: Index No. 805009/2022,MOTION SEQ. No. 001
• Citation: 2022 NY Slip Op 33639 (U)
• Parties: ILTER AYKAC, Plaintiff, v. CITY OF NEW YORK, LEON EISIKOWITZ, individually, and LEON B. EISIKOWITZ, M.D., P.C., Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33639(U)

ILTER AYKAC, Plaintiff, v. CITY OF NEW YORK, LEON EISIKOWITZ, individually, and LEON B. EISIKOWITZ, M.D., P.C., Defendants.

Index No. 805009/2022, MOTION SEQ. No. 001

Supreme Court, New York County

October 20, 2022

Unpublished Opinion

MOTION DATE 06/08/2022

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

John J. Kelley Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 19,20,21,22 were read on this motion to/for DISMISS/X-MOTION AMEND COMPLAINT

I. INTRODUCTION

This is an action in which the plaintiff, a former New York City Police Department (NYPD) detective, seeks to recover damages for medical malpractice, negligence, gross negligence, negligent hiring, training, and retention of NYPD medical staff, and intentional and negligent infliction of emotional distress (hereafter collectively the tort claims). He also seeks to recover for discrimination in the terms and conditions of his employment on the basis of disability, creation of a hostile work environment on the basis of disability, and retaliation, in violation of the Administrative Code of the City of New York (Admin. Code.) § 8-101, et seq. (hereinafter collectively the discrimination claims). The defendants move pursuant to CPLR 3211 (a)(7) to dismiss the entirety of the complaint for failure to state a cause of action. They also seek to dismiss the tort claims on the ground that the plaintiff failed timely to serve a legally sufficient notice of claim upon the New York City Comptroller in accordance with General Municipal Law § 50-e(5). The plaintiff opposes the motion, and cross-moves pursuant to CPLR 3025(b) for leave to serve and file and amended complaint.

The defendants' motion is granted, and the complaint is dismissed. The cross motion is denied.

II. FACTUAL BACKGROUND

The dispute here arose from a series of encounters at the beginning of the COVID-19 pandemic that the plaintiff had with NYPD District Surgeon Leon Eisikowitz, a defendant in this action, over the plaintiff's medical condition, and whether his contraction of COVID-19 rendered him unable to report to work. The plaintiff alleged that he had a severe case of COVID-19, was hospitalized due to extreme respiratory distress during March and early April 2020, and was given a poor prognosis. He survived, however, and was discharged from the hospital, after which he had an ongoing disagreement with Eisikowitz as to whether he had long-term COVID-19, whether such a condition was recognized by the medical community in the first instance, and whether the plaintiff was fit to return to work.

The plaintiff alleged that Eisikowitz committed medical malpractice and engaged in other tortious behavior, on some unspecified date in April 2020, by insisting that the plaintiff return to work despite suffering from the effects of long-term COVID-19. He further alleged that, on May 14, 2020, Eisikowitz committed additional medical malpractice and engaged in other tortious behavior by again insisting that he return to work based on the plaintiff's condition at the time, disparaging the plaintiff's private physicians, and recommending a pulmonologist to the plaintiff, purportedly in violation of NYPD rules. The plaintiff also asserted that, on some unspecified date in June 2020, Eisikowitz, in order to expedite the plaintiff's return to work, voluntarily advised the plaintiff not to follow up with surgery to treat kidney cysts that had been diagnosed as cancerous by a private physician. He nonetheless also asserted that, although he delayed the surgery for several months, the cancerous tissue successfully was removed, and did not spread beyond his kidneys. In addition, the plaintiff alleged that Eisikowitz subjected him to verbal "abuse" between April 2020 and June 2020, specifically by referring to him as "fat," and characterizing him as a "malingerer," and by other statements meant to compel the plaintiff to return to work in spite of his physical condition.

The plaintiff also alleged in his complaint that, sometime in May 2021, Eisikowitz improperly "forced" him to submit to an electroencephalogram (EEG) examination, and committed malpractice and other torts by having him walk around the office during the test. He averred that he was compelled to walk despite his weakened condition and that, as a consequence of walking, he fainted. Additionally, he asserted that, sometime in June 2021, another district surgeon, Dr. Hassett, directed him to return to work despite the continuing physical weakness that was caused by his medical condition.

III. UNTIMELY AND INSUFFICIENT NOTICE OF CLAIM

Timely service of a legally sufficient notice of claim upon the City Comptroller is a condition precedent to the commencement of an action against the City of New York to recover damages for its tortious conduct (see Davidson v Bronx Municipal Hosp., 64 N.Y.2d 59, 61 [1984]; McGrue v City of New York, 195 A.D.3d 932, 932 [2d Dept 2021]; Admin. Code § 7-201). The failure to satisfy this condition precedent may implicate the subject matter jurisdiction of the court (see Copeland v Salomon, 56 N.Y.2d 222, 227 [1982] [the term "lack of subject matter jurisdiction" is "inexactly used to refer to the situation in which the absence of a condition precedent requires dismissal of a particular case notwithstanding that the court has jurisdiction of the subject matter"]; Lumbermens Mut. Cas. Co. v Port Authority of N.Y. & N.J., 137 A.D.2d 796 [2d Dept 1988] [failure to serve notice of claim upon Port Authority deprives court of subject matter jurisdiction]; cf McKenzie v Port Auth. of N.Y. & N.J., 201 A.D.3d 572, 572 [1st Dept 2022] [requirement that action be commenced against Port Authority within one year of accrual of cause of action is a condition precedent, and the failure to commence action within that time period deprives the court of subject matter jurisdiction]). A plaintiff must not only plead in his or her complaint that he or she has served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that, in that time, the municipal defendants neglected to or refused to adjust or to satisfy the claim (see Davidson v Bronx Municipal Hosp., 64 N.Y.2d at 61-62). General Municipal Law § 50-e(2) requires the written notice to be "sworn to by or on behalf of the claimant," and it must set forth "the name and post-office address of each claimant, and of his attorney, if any," "the nature of the claim," "the time when, the place where and the manner in which the claim arose," and "the items of damage or injuries claimed to have been sustained so far as then practicable."

General Municipal Law § 50-e requires that a notice of claim be served within 90 days after a tort claim accrues against a municipality (see General Municipal Law § 50-e[1][a]; Matter of City of New York v County of Nassau, 146 A.D.3d 948, 949 [2d Dept 2017]; Matter of Brownstein v Incorporated Vil. of Hempstead, 52 A.D.3d 507 [2d Dept 2008]).

As the Court of Appeals explained it,

"[t]he test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate .... Thus, in determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the [claim]"

(Brown v City of New York, 95 N.Y.2d 389, 393 [2000] [internal quotation marks and citations omitted]). The "plain purpose" of statutes requiring prelitigation notice to municipalities "is to guard them against imposition by requiring notice of the circumstances . . . upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation" (Rosenbaum v City of New York, 8 N.Y.3d 1, 10-11 [2006], quoting Purdy v City of New York, 193 NY 521, 523 [1908]).

With respect to claims against municipal employees acting in their official capacity, General Municipal Law § 50-e(1)(b) provides, in pertinent part, that

"[s]ervice of the notice of claim upon an . . . employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law"

(emphasis added) (see Thygesen v North Bailey Volunteer Fire Co., Inc., 106 A.D.3d 1458, 1460 [4th Dept 2013]). General Municipal Law § 50-k(3) provides that the City of New York is obligated to indemnify and hold harmless any City employee for his or her tortious conduct where "the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained." Inasmuch as Eisikowitz was acting in the course and scope of his employment with the NYPD when examining the plaintiff and reporting his findings to supervisory personnel at the NYPD, the plaintiff was required to serve a timely and proper notice of claim upon the Comptroller in connection with his tort claims against Eisikowitz (see Wagman v Hooper, 138 A.D.3d 826, 827 [2d Dept 2016]), even though he was not obligated to name Eisikowitz as a respondent in the...