Cusick v. Lutheran Medical Center

• Decision Date: 05 November 1984
• Citation: Cusick v. Lutheran Medical Center, 481 N.Y.S.2d 122, 105 A.D.2d 681 (N.Y. App. Div. 1984)
• Parties: Theresa CUSICK, etc., Plaintiff-Respondent, v. LUTHERAN MEDICAL CENTER, et al., Defendants-Respondents; New York City Transit Authority, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 122

481 N.Y.S.2d 122

105 A.D.2d 681

Theresa CUSICK, etc., Plaintiff-Respondent, v. LUTHERAN MEDICAL CENTER, et al., Defendants-Respondents New York City Transit Authority, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 5, 1984.

Richard K. Bernard, Brooklyn (Lawrence Heisler, Brooklyn, of counsel), for appellants.

McLaughlin, McLaughlin & Neimark, Brooklyn (Harold J. McLaughlin, Brooklyn, of counsel), for plaintiff-respondent.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Larry A. Sonnenshein and Elizabeth S. Natrella, New York City, of counsel), for defendant-respondent New York City Health and Hospitals Corp.

Garbarini, Scher & DeCicco, P.C., New York City (Leo Rothbard, New York City, of counsel), for defendant-respondent Stephen Gilbert, M.D.

Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for wrongful death based upon medical malpractice, defendants New York City Transit Authority (NYCTA) and Metropolitan Transportation Authority (MTA) appeal from an order of the Supreme Court, Kings County, dated September 23, 1982, which denied their motion for summary judgment dismissing the complaint as against them.

Order reversed, on the law, with costs payable to appellants by plaintiff-respondent, motion granted, complaint dismissed as against appellants, action against them severed from the action against the remaining defendants, all cross claims by and against MTA dismissed, and all cross claims by and against NYCTA converted into third-party complaints.

Plaintiff brought this action to recover damages for the alleged wrongful death of her husband, a bus driver, employed by defendant NYCTA. Plaintiff, however, is barred by the exclusivity of remedy provision of section 11 of the Workers' Compensation Law from suing her husband's employer.

The complaint and cross claims by and against MTA must also be dismissed. It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility (Wenthen v. Metropolitan Transp. Auth., 95 A.D.2d 852, 464 N.Y.S.2d 212; Bujosa v. Metropolitan Transp. Auth., 44 A.D.2d 849, 355 N.Y.S.2d 800; Matter of Abrams v. New York City Tr. Auth., 48 A.D.2d 69, 368 N.Y.S.2d 165, affd. 39 N.Y.2d 990, 387 N.Y.S.2d 235, 355 N.E.2d 289; Prinz...