Presently before the Court is a Motion by Defendants Patricia Monroe, M.D. and Adirondack Internal Medicine and Pediatrics, P.C. (collectively, "Defendants"), requesting that this Court certify its Memorandum-Decision and Order dated May 13, 2009 ("May 13, 2009 Order") (Dkt. No. 201)*fn1 for an immediate appeal. Motion (Dkt. No. 221). For the reasons discussed below, Defendants' Motion is denied.
Plaintiffs filed their Complaint in this matter on April 16, 2002. Complaint (Dkt. No. 1).
Following motion practice and a Mandate by the Second Circuit Court of Appeals filed on December 23, 2008 (Dkt. No. 165), Plaintiffs' medical malpractice claims against Defendants are scheduled for a trial set to begin on August 18, 2009. In their Answer to Plaintiffs' Complaint, Defendants had asserted Cross-Claims against various Cross-Defendants, arguing that each of the Cross-Defendants had a relationship with Plaintiffs giving rise to a duty of care which the Cross-Defendants violated, thereby causing or contributing to Plaintiffs' injuries. Answer (Dkt. No. 15). The Cross-Defendants included Nancy Lewis ("Lewis") and the Crisis Center of Clinton, Essex and Franklin Counties, Inc. ("Crisis Center") (collectively, the "Lewis Cross-Defendants").
Lewis was a counselor at the Crisis Center during the Fall of 2000. Deposition of Nancy Lewis ("Lewis Dep.") at 8 (Dkt. No. 81, Ex. F.). Lewis counseled Plaintiff Brittany Page ("Brittany") on a weekly basis after the Crisis Center received a referral that Brittany had reported to her mother that she had been touched inappropriately by her older brother. Lewis Dep. at 17-19. In support of their Cross-Claims for contribution against Lewis and the Crisis Center, Defendants alleged that Lewis breached her duty of care to Brittany by, inter alia, failing to discuss Brittany's allegations of sexual abuse during their counseling sessions and failing to take appropriate actions following a December 4, 2000 meeting at Brittany's school.*fn3 Defendants also alleged that the Crisis Center breached its duty to Brittany by its failure to properly train Lewis prior to Lewis beginning counseling sessions with Brittany.
In its May 13, 2009 Order, this Court granted all Cross-Defendants' Motions for summary judgment and dismissed all Cross-Defendants from this action. Dkt. No. 201. The Court concluded that Defendants had "failed to provide sufficient evidence of the standard of care applicable to Lewis as an unlicensed crisis counselor." Id. at 11-12 (citations omitted). In its opposition to Lewis and the Crisis Center's Motion for summary judgment, Defendants relied upon an expert affidavit by Dr. Susan Cox, Ph.D. ("Dr. Cox"), a psychologist, which criticized several aspects of Lewis's handling of her counseling with Brittany. Id. at 12; Cox Aff. (Dkt. No. 138, Attach. 1).
In its May 13, 2009 Order, the Court held that the affidavit did not create a triable issue of fact on the contribution claim:
Dr. Cox's affidavit does not include a factual foundation for her assertions regarding the standard of care applicable to unlicensed crisis counselors. Neither Dr. Cox's affidavit nor Defendants' memorandum cites any professional guidelines, regulations, pertinent case law, or other sources to support Dr. Cox's conclusory assertions regarding the standard of care. Accordingly, Dr. Cox's affidavit is insufficient to overcome Lewis and the Crisis Center's Motion for summary judgment.
May 13, 2009 Order at 12 (citing Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 545 (2002)).
The Court also found that Defendants had: failed to produce sufficient evidence to show that the Crisis Center's training of Lewis was inadequate, or that the lack of training caused harm to Brittany. Again, Dr. Cox's statements regarding the alleged lack of training are conclusory and do not reference any sources for how much training is required for unlicensed counselors such as Lewis. May 13, 2009 Order at 13.
On June 5, 2009, the Defendants appealed the May 13, 2009 Order to the United States Court of Appeals for the Second Circuit, appealing that Order only insofar as to the Court's granting of summary judgment for the Lewis Cross-Defendants. See Notice of Appeal (Dkt. No. 205). On July 6, 2009, the Lewis Cross-Defendants filed a Motion in the Second Circuit seeking dismissal of this appeal, on the grounds that the Second Circuit does not yet have jurisdiction over the appeal because a final judgment has not been entered in this case and this Court has not certified the interlocutory decision for immediate appeal pursuant to 28 U.S.C. § 1292(b). See Dkt. No. 221, Ex. A. On July 16, 2009, the Defendants entered into a Stipulation with the Lewis Cross-Defendants, agreeing to withdraw their appeal as premature because claims were still pending before this Court and no certificate of appealability had been granted by this Court. Dkt. No. 226, Attach. 2.
Defendants filed the pending Motion for a certificate of appealability on July 10, 2009. Dkt. No. 221. The Lewis Cross-Defendants filed their response in opposition on July 24, 2009. Dkt. No. 226.
A. The Court's Jurisdiction to ...