United States District Court, E.D. New York
DANZIG, SCHERER, HYLAND & PERRETTI, LLP BY: Lance J.
Kalik, Esq. and Peter M. Perkowski, Jr. Attorneys for
SCHWARTZ LAW, P.C. BY: Matthew J. Conroy, Esq. Attorneys for
Defendants Hita Sharma, Mohan Sharma, Caring Medical, LLC and
LESSER, P.C. BY: Leonard F. Lesser, Esq. Attorneys for
Defendant Jane Doe.
MEMORANDUM AND ORDER
LEONARD D. WEXLER UNITED STATES DISTRICT JUDGE.
Harleysville Insurance ("plaintiff, "
"Harleysville" or the "Insurer")
commenced this diversity action for a declaration that it is
not obligated to defend or indemnify its insureds in an
underlying action brought against them by defendant Jane Doe
in New York Supreme Court. Currently before the Court are
Harleyville's motion for summary judgment, see
Motion, Docket Entry ("DE") , and two separate
cross-motions for summary judgment submitted by defendant
Jane Doe, DE , and by the remaining defendants. DE .
For the reasons set forth herein, the motions are denied.
facts are taken from the complaint and submissions of the
parties on their motions. They are reviewed in the light most
favorable to the nonmoving parties.
Mohan Sharma ("Sharma") and Hita Sharma are husband
and wife, and are both medical doctors. Defendant Sukhdata,
LLC ("Sukhdata"), which is controlled by both
Sharma defendants, owns the building located at 276 Smithtown
Boulevard, Nesconset, New York (the "Building").
Caring Medical, LLC ("Caring Medical"), a medical
practice owned and operated by Mohan Sharma, leased one of
the units in the Building from Sukhdata.
October 11, 2013, Mohan Sharma allegedly committed sexual
misconduct against Jane Doe while she was sitting in an
examination room at Caring Medical. At the time, Sharma was
providing medical treatment to Doe's grandmother. Doe,
who is also a patient of Sharma, recorded much of the
encounter by cell phone. She filed a criminal complaint on
October 12, 2013, and Sharma was arrested on October 13,
2013. He was ultimately charged with one count of Endangering
an Incompetent, a Class E felony, and one count of Sexual
Contact with an Incompetent, a Class A misdemeanor.
February 11, 2014, Jane Doe and her mother, Mary Doe, filed a
civil complaint in the Supreme Court of New York, Nassau
County, against Sharma, Hita Sharma, Caring Medical,
Sukhdata, Suffolk Family Medicine Associates, P.C., and
Dinesh Sethi, M.D. (the "Underlying Action"). An
Amended Complaint in the Underlying Action was filed on April
11, 2014. The Amended Complaint states causes of action for
(1) medical negligence and malpractice, (2) sexual assault,
(3) civil battery, (4) negligent infliction of emotional
distress, (5) intentional infliction of emotional distress,
(6) negligent hiring, supervision, and retention, and (7)
fraudulent conveyance. The fraudulent conveyance claim
concerns the sale of the medical practice to Sethi on January
15, 2014 for $300, 000.
Mohan Sharma's Medical Condition
November 15, 2013, about one month after his arrest, Sharma
presented at the emergency room at Flushing Hospital Medical
Center with complaints of weakness, headache, dizziness,
slurred speech, nausea, and difficulty swallowing and was
admitted to the stroke unit. Declaration of Leonard F. Lesser
("Lesser Decl."), Ex. Q, DE . Treatment notes
from the hospital indicate that Sharma had been taking
medication for migraine headaches for a long time, that he
had been suffering from loss of interest and depression-like
symptoms for over a year, and that he was taking Lexapro.
Later on the same day, Sharma was transferred to North Shore
University Hospital. The records from North Shore describe
Sharma as having a history of migraines, depression,
cognitive decline over a year, and "changes in level of
consciousness with staring, possibly subtle cognitive
dysfunction over the past year" and that he "might
have been having seizures and cognitive deterioration related
to his as yet undiagnosed underlying condition." The
notes indicated a working diagnosis of
"Leukoencepalopathy with white matter changes with left
sided weakness." Lesser Deck, Ex. R. Sharma was
discharged after five days and pursued outpatient treatment
over the ensuing months. By February 2014, one doctor noted
that Sharma was suffering from "Memory Loss as well as
an abnormal MRI. At this time he is unable to participate in
any meaningful conversation and will not be able to
work." Lesser Deck, Ex. T. None of the records provide
any opinion regarding Sharma's condition on the date of
the incident, October 11, 2013.
appears undisputed that Mohan Sharma is currently
incapacitated from organic causes. Harleysville states that
upon information and belief, the Underlying Action was stayed
in December 2014 due to Mohan Sharma's mental incapacity,
and Doe's counsel states that he was informed by the
Assistant District Attorney on the criminal matter that
"the prosecution will be consenting to Sharma's
status as a mentally incapacitated person, pursuant to Crim
Proc. Law §730.40, whereby a Final Order of Observation
will be issued and the felony ...