Caimares v. Erickson

• Decision Date: 04 June 2019
• Docket Number: Index 20620/17E,9530
• Citation: 103 N.Y.S.3d 36,173 A.D.3d 417
• Parties: Cynthia I. CAIMARES, Plaintiff-Respondent, v. Aimee ERICKSON, et al., Defendants-Appellants, David M. Jakubowicz, M.D., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 417
103 N.Y.S.3d 36

Cynthia I. CAIMARES, Plaintiff-Respondent,
v.
Aimee ERICKSON, et al., Defendants-Appellants,

David M. Jakubowicz, M.D., et al., Defendants.

9530
Index 20620/17E

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JUNE 4, 2019

Vogrin & Frimet, LLP, New York (Francine L. Semaya of counsel), for appellants.

Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for respondent.

Acosta, P.J., Richter, Kapnick, Kahn, Kern, JJ.

173 A.D.3d 417

Plaintiff, diagnosed with advanced-stage breast cancer, commenced this action to recover for injuries sustained due to defendants' alleged failure to inform her of the results of an October 28, 2014 mammography or refer her for follow-up evaluation. Pursuant to an order of the South Carolina Court of Common Pleas, dated September

103 N.Y.S.3d 37

21, 2017, and a Clarification Order of the same court, dated February 8, 2018 (Stay Orders), issued in connection with the liquidation of Oceanus Insurance Company, a Risk Retention Group, this action was administratively stayed, because defendant Aimee Erickson, FNP, is insured by Oceanus.

In accord with our recent decision in Givens v. Kingsbridge Hgts. Care Ctr., Inc., 171 A.D.3d 569, 570, 98 N.Y.S.3d 176 [1st Dept., 2019], we hold that lifting the stay in this case does not violate the Uniform Insurers Liquidation Act (UILA) ( Insurance Law §§ 7408 – 7415 ), because Oceanus is a risk retention group (RRG) and exempt from state laws such as the UILA.

The Full Faith and Credit Clause of the U.S. Constitution ( U.S. Const, art IV, § 1 ) does not dictate a different result. That clause does not require a state to apply a foreign state's law in

173 A.D.3d 418

violation of its own legitimate public policy ( Givens, 171 A.D.3d at 569, 98 N.Y.S.3d 176, citing Crair v. Brookdale Hosp. Med. Ctr., Cornell Univ., 94 N.Y.2d...