Rothschild v. Braselmann
| Decision Date | 04 January 2018 |
| Docket Number | 524521 |
| Citation | 157 A.D.3d 1027,69 N.Y.S.3d 375 |
| Parties | Martin J. ROTHSCHILD, Appellant, v. Peter A. BRASELMANN, Individually and as Agent of Arnot Ogden Medical Center, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
157 A.D.3d 1027
69 N.Y.S.3d 375
Martin J. ROTHSCHILD, Appellant,
v.
Peter A. BRASELMANN, Individually and as Agent of Arnot Ogden Medical Center, et al., Respondents.
524521
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 14, 2017
Decided and Entered: January 4, 2018
Cherundolo Law Firm, PLLC, Syracuse (J. Patrick Lannon of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Patrick A. Woods of counsel), for Peter A. Braselmann and others, respondents.
Ricotta & Visco, Buffalo (Thomas J. Callocchia of counsel), for Arnot Ogden Medical Center, respondent.
Fager Amsler, Keller & Schoppmann, LLP, Latham (Mia D. VanAuken of counsel), for Elmira Urological Associates PC, respondent.
Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Diane Lufkin Schilling of counsel), for Irwin Lieb and others, respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from an order of the Supreme Court (O'Shea, J.), entered September 21, 2016 in Chemung County, which, among other things, granted defendants' motions to dismiss the complaint.
In 2013 and 2014, plaintiff, while an inmate at Elmira Correctional Facility and Clinton Correctional Facility, suffered serious urological problems that led to hospitalization for septic shock. Plaintiff commenced the instant action (hereinafter the Supreme Court action) in October 2015 alleging negligence and medical malpractice against five doctors and the employers of three of those doctors. Prior to the Supreme Court action, plaintiff filed a claim in the Court of Claims (hereinafter the Court of Claims action) in September 2014, alleging similar negligence and medical malpractice. Also prior to the Supreme Court action, plaintiff filed a complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of New York (hereinafter the federal action), alleging that the inadequate medical care that he received while incarcerated constituted cruel and unusual punishment in violation of the Eighth Amendment. The federal action names as defendants four of the doctors who are defendants in the Supreme Court action—defendants Peter A. Braselmann, Richard Adams, Vonda L. Johnson and Irwin Lieb.
Defendants all moved to dismiss the complaint in the Supreme Court action pursuant to CPLR 3211(a)(4) on the ground that the other actions filed by plaintiff allege the same misconduct. Braselmann, Adams and Johnson, in their motion to dismiss, also sought dismissal of the complaint pursuant to CPLR 3211(a)(8) on the ground of improper service. Plaintiff opposed these motions and cross-moved to have affidavits of service for Adams and Johnson deemed timely nunc pro tunc.
Adams and Johnson opposed the cross motion. Supreme Court granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(4) and denied plaintiff's cross motion. Supreme Court did not address the motion by Braselmann, Adams and Johnson to dismiss based on improper service. Plaintiff now appeals.
Initially, the Supreme Court action against Braselmann, Adams and Johnson must be dismissed because Correction Law § 24 deprives Supreme Court of subject matter jurisdiction1 over state law torts brought against employees of the Department of Corrections and Community Supervision (hereinafter DOCCS) for actions or omissions within the scope of their employment; rather all such claims must be brought in the Court of Claims (see Bahadur v. New York State Dept. of Correctional Servs., 88 A.D.3d 629, 630–631, 930 N.Y.S.2d 631 [2011] ). Here, the record establishes that these three doctors are DOCCS employees and any medical malpractice or negligence alleged occurred within the scope of that employment, precluding subject matter jurisdiction in Supreme Court (see Upsher v. Ramineni, 84 A.D.3d 653, 653–654,...
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...actions is determined by a theory of agency or control in fact, or apparent or ostensible agency" ( Rothschild v. Braselmann , 157 A.D.3d 1027, 1029, 69 N.Y.S.3d 375 [3d Dept. 2018] [internal quotation marks and citations omitted]; see Garofolo , 135 A.D.3d at 1109, 23 N.Y.S.3d 667 ). "The ......
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...Court lacks jurisdiction, as such claim must be brought in the Court of Claims (see Correction Law § 24 ; Rothschild v. Braselmann, 157 A.D.3d 1027, 1028, 69 N.Y.S.3d 375 [2018] ). In view of the foregoing, Supreme Court properly dismissed the complaint. We have considered plaintiff's remai......
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