United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE
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
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.
following reasons, the motion to dismiss is GRANTED IN PART
and DENIED IN PART.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1332, 1333, and 1367(a).
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.
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).
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
alleges the time delay between his arrival at WCMC and his
surgery caused or contributed to his permanent paralysis.
commenced this action on February 12, 2016, by filing a
complaint against TZC, Traylor Bros., Inc., the tug, and the
barge. 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.
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 ¶
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 ...