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Downing v. Tappan Zee Constructors, LLC

United States District Court, S.D. New York

November 13, 2017

RICHARD DOWNING, Plaintiff,
v.
TAPPAN ZEE CONSTRUCTORS, LLC, PHELPS MEMORIAL HOSPITAL, NORTHWELL HEALTH, INC., BARUCH BERZON, M.D., SANDA CARNICIU, M.D., THOMAS LEE, M.D., and WESTCHESTER COUNTY HEALTHCARE CORP., Defendants.

          OPINION AND ORDER

          VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE

         Plaintiff Richard Downing brings this action against defendants Tappan Zee Constructors, LLC (“TZC”), Phelps Memorial Hospital, Northwell Health, Inc., Baruch Berzon, M.D., Sanda Carniciu, M.D., Thomas Lee, M.D., and Westchester County Healthcare Corp. (“WCHC”), asserting claims sounding in maritime law, negligence, and medical malpractice.

         Now pending is WCHC's motion pursuant to Rule 12(b)(6) to dismiss the third amended complaint as against WCHC and to dismiss the cross-claim filed by TZC against WCHC. (Doc. #91).

         For the following reasons, the motion to dismiss is GRANTED IN PART and DENIED IN PART.

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332, 1333, and 1367(a).

         BACKGROUND

         For the purpose of deciding the pending motion, the Court accepts as true all well pleaded factual allegations in the third amended complaint (“TAC”), as summarized below.

         Plaintiff worked as a seaman aboard the Tug Prospector (the “tug”) at the Tappan Zee Bridge construction site on the Hudson River. On July 8, 2015, the tug captain told plaintiff to board the Material Barge (the “barge”) to help move the barge to a mooring. While handling heavy mooring lines, plaintiff injured his back and spinal cord. Plaintiff was transferred from the barge to a crew boat to be taken ashore. Plaintiff was treated on shore and then transferred to Phelps Memorial Hospital. While at Phelps, plaintiff became paralyzed from the waist down. Because Phelps could not perform the emergency spinal surgery plaintiff required, he was transferred to Westchester County Medical Center (“WCMC”), owned and operated by WCHC, a “quasi-municipal corporation.” (TAC ¶ 129).

         Plaintiff arrived at WCMC at 9:53 p.m. on July 8, 2015. WCMC performed an MRI on plaintiff on July 9 at 12:31 a.m. and subsequently transferred him to the orthopedic unit at 4:56 a.m. Plaintiff underwent spinal surgery shortly thereafter, but remained paralyzed.

         Plaintiff alleges the time delay between his arrival at WCMC and his surgery caused or contributed to his permanent paralysis.

         Plaintiff commenced this action on February 12, 2016, by filing a complaint against TZC, Traylor Bros., Inc., the tug, and the barge.[1] Plaintiff filed an amended complaint on May 27, 2016, to add claims for negligent medical care. Plaintiff filed a second amended complaint on October 11, 2016, adding Phelps Memorial Hospital, Northwell Health, Inc., Berzon, Carniciu, and Lee as defendants.

         On September 30, 2016, plaintiff commenced a separate action in Supreme Court, Westchester County, seeking leave to serve a late notice of claim on WCHC. On January 23, 2017, Justice Joan B. Lefkowitz issued an order stating, “plaintiff has deemed timely filed a Notice of Claim in proper statutory form and served nunc pro tunc.” (TAC ¶ 130).

         On February 23, 2017, plaintiff filed the third amended complaint, which added WCHC as a defendant. In the third amended complaint, plaintiff alleges “[t]hat thirty (30) days or more have elapsed since the deemed timely service of the Notice of Claim has expired [sic], that no demand for statutory hearing has been made, that no settlement or adjustment of the within claim has been made and that all ...


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