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Harleysville Worcester Insurance Co. v. Sharma

United States District Court, E.D. New York

January 18, 2017

HARLEYSVILLE WORCESTER INSURANCE COMPANY, Plaintiff,
v.
MOHAN SHARMA, M.D., HITA SHARMA, M.D., CARING MEDICAL, LLC, SUKHADATA, LLC, SUFFOLK FAMILY MEDICINE ASSOCIATES, P.C., and JANE DOE, a Mentally Disabled Person, Individually, and by her Mother and Natural Guardian, Mary Doe, Defendants.

          RIKER, DANZIG, SCHERER, HYLAND & PERRETTI, LLP BY: Lance J. Kalik, Esq. and Peter M. Perkowski, Jr. Attorneys for Plaintiff.

          SCHWARTZ LAW, P.C. BY: Matthew J. Conroy, Esq. Attorneys for Defendants Hita Sharma, Mohan Sharma, Caring Medical, LLC and Sukhdata, LLC.

          SIMON LESSER, P.C. BY: Leonard F. Lesser, Esq. Attorneys for Defendant Jane Doe.

          MEMORANDUM AND ORDER

          LEONARD D. WEXLER UNITED STATES DISTRICT JUDGE.

         Plaintiff 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") [44], and two separate cross-motions for summary judgment submitted by defendant Jane Doe, DE [58], and by the remaining defendants. DE [52]. For the reasons set forth herein, the motions are denied.

         I. BACKGROUND

         The 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.

         A. The Underlying Action

         Defendants 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.

         On 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.

         On 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.

         B. Mohan Sharma's Medical Condition

         On 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 [61]. 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.

         It 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 ...


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