MARTIN J. ROTHSCHILD, Appellant,
PETER A. BRASELMANN, Individually and as Agent of ARNOT OGDEN MEDICAL CENTER, et al., Respondents.
Calendar Date: November 14, 2017
Cherundolo Law Firm, PLLC, Syracuse (J. Patrick Lannon of
counsel), for appellant.
T. Schneiderman, Attorney General, Albany (Patrick A. Woods
of counsel), for Peter A. Braselmann and others, respondents.
Ricotta & Visco, Buffalo (Thomas J. Callocchia of
counsel), for Arnot Ogden Medical Center, respondent.
Amsler, Keller & Schoppmann, LLP, Latham (Mia D. VanAuken
of counsel), for Elmira Urological Associates PC, respondent.
Napierski, Vandenburgh, Napierski & O'Connor, LLP,
Albany (Diane Lufkin Schilling of counsel), for Irwin Lieb
and others, respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (O'Shea, J.), entered
September 21, 2016 in Chemung County, which, among other
things, granted defendants' motions to dismiss the
and 2014, plaintiff, while an inmate at Elmira Correctional
Facility and Clinton Correctional Facility, suffered serious
urological problems that led to hospitalization for septic
shock. Plaintiff commenced the instant action (hereinafter
the Supreme Court action) in October 2015 alleging negligence
and medical malpractice against five doctors and the
employers of three of those doctors. Prior to the Supreme
Court action, plaintiff filed a claim in the Court of Claims
(hereinafter the Court of Claims action) in September 2014,
alleging similar negligence and medical malpractice. Also
prior to the Supreme Court action, plaintiff filed a
complaint pursuant to 42 USC § 1983 in the United States
District Court for the Northern District of New York
(hereinafter the federal action), alleging that the
inadequate medical care that he received while incarcerated
constituted cruel and unusual punishment in violation of the
Eighth Amendment. The federal action names as defendants four
of the doctors who are defendants in the Supreme Court action
- defendants Peter A. Braselmann, Richard Adams, Vonda L.
Johnson and Irwin Lieb.
all moved to dismiss the complaint in the Supreme Court
action pursuant to CPLR 3211 (a) (4) on the ground that the
other actions filed by plaintiff allege the same misconduct.
Braselmann, Adams and Johnson, in their motion to dismiss,
also sought dismissal of the complaint pursuant to CPLR 3211
(a) (8) on the ground of improper service. Plaintiff opposed
these motions and cross-moved to have affidavits of service
for Adams and Johnson deemed timely nunc pro tunc. Adams and
Johnson opposed the cross motion. Supreme Court granted
defendants' motions to dismiss the complaint pursuant to
CPLR 3211 (a) (4) and denied plaintiff's cross motion.
Supreme Court did not address the motion by Braselmann, Adams
and Johnson to dismiss based on improper service. Plaintiff
the Supreme Court action against Braselmann, Adams and
Johnson must be dismissed because Correction Law § 24
deprives Supreme Court of subject matter jurisdiction
over state law torts brought against employees of the
Department of Corrections and Community Supervision
(hereinafter DOCCS) for actions or omissions within the scope
of their employment; rather all such claims must be brought
in the Court of Claims (see Bahadur v New York State
Dept. of Correctional Servs., 88 A.D.3d 629, 630-631
). Here, the record establishes that these three
doctors are DOCCS employees and any medical malpractice or
negligence alleged occurred within the scope of that
employment, precluding subject matter jurisdiction in Supreme
Court (see Upsher v Ramineni, 84 A.D.3d 653, 653-654
, lv denied 17 N.Y.3d 710');">17 N.Y.3d 710 ; cf.
Morell v Balasubramanian, 70 N.Y.2d 297, 300-301
). Further, as any liability against defendant Arnot
Ogden Medical Center would be solely vicarious based upon
Braselmann's liability, Supreme Court lacks subject
matter jurisdiction as to the claims against it. This
determination renders academic plaintiff's remaining
contentions regarding dismissal of the Supreme Court action
against Braselmann, Adams and Johnson.
and defendant Alan Angell are not DOCCS employees; rather,
they are medical doctors who provided contractual medical
services to plaintiff, hence Correction Law § 24 does
not deprive Supreme Court of subject matter jurisdiction
(see Morell v Balasubramanian, 70 N.Y.2d at 301;
Woodward v State of New York, 23 A.D.3d 852, 855-856
, lv dismissed 6 N.Y.3d 807');">6 N.Y.3d 807 ).
Nevertheless, these defendants assert that under CPLR 3211
(a) (4), the Supreme Court action must be dismissed against
them as duplicative of the federal action and the Court of
Claims action. While the federal court possesses supplemental
jurisdiction to hear the state claims (see 28 USC
§ 1367; Grimmett v Corizon Med. Assoc. of New
York, U.S. Dist Ct, S.D. NY, 15-CV-7351, Oetken, J.,
2017), this jurisdiction is tethered to plaintiff's
federal tort claim alleging a violation of the Eighth
Amendment. These two actions proceed under different legal
theories inasmuch as the federal claim requires proof that
the officials were deliberately indifferent to
plaintiff's serious medical issues (see Estelle v
Gamble, 429 U.S. 97, 104 ), whereas medical
malpractice requires merely the showing that a departure from
accepted medical practice was the proximate cause of
plaintiff's injuries (see Webb v Albany Med.
Ctr., 151 A.D.3d 1435, 1436 ; Vaughan v Saint
Francis Hosp., 29 A.D.3d 1133, 1136-1137 ).
Accordingly, plaintiff may be unable to establish the Eighth
Amendment claim, and, while the federal court could still
retain the supplemental state claims, it is not required to
and the action could be dismissed (see Liberty Mut. Ins.
Co. v Harvey Gerstman Assoc., Inc., U.S. Dist Ct, ED NY,
11-CV-4825, Feuerstein, J., 2012). Because it is impossible
to speculate whether the federal court would dismiss or
retain jurisdiction in this situation, the federal action
cannot be said to be duplicative, as plaintiff may be unable
to obtain full relief therein. Further, even though such a
dismissal would not be on the merits, savings provisions that
would otherwise permit timely refiling in state court may not
be available due to core statute of limitations issues that
may be present in a state court action. 
legal theory in the Court of Claims action is nearly
identical to the Supreme Court action, and it is not disputed
that the two actions arise out of the same set of facts.
Moreover, Correction Law § 24-a provides that licensed
physicians providing contractual medical care at the request
of DOCCS are covered by the defense and indemnity provisions
in Public Officers Law § 17, as long as the injury was
not the result of intentional wrongdoing. As such, it appears
that the dismissal of the Supreme Court action would not
prejudice plaintiff's right to receive full recovery from
all defendants, as intentional wrongdoing is not ...