Downing v. Tappan Zee Constructors, LLC et al
OPINION AND ORDER re: 91 MOTION to Dismiss . filed by Westchester County Healthcare Corp. Defendant WCHC's motion to dismiss the third amended complaint against it is GRANTED. Defendant WCHC's motion to dismiss the cross-claim filed against it by TZC is DENIED. The Clerk is instructed to terminate the pending motion. (Doc. #91). So Ordered. (Signed by Judge Vincent L. Briccetti on 11/13/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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.,
OPINION AND ORDER
16 CV 1114 (VB)
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.
For the following reasons, the motion to dismiss is GRANTED IN PART and DENIED
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332, 1333, and
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 November 13, 2017, Traylor Bros., Inc., the tug, and the barge were dismissed from
this case by stipulation and order. (Doc. #130).
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 statutory conditions precedent to the commencement of this action
has [sic] been fulfilled.” (TAC ¶ 131).
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative
complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,” are not entitled to
the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
Under New York law, which governs when federal subject matter jurisdiction exists by
way of diversity, the statute of limitations is an affirmative defense, and the burden is on
defendants to show plaintiff’s claims are untimely. Bano v. Union Carbide Corp., 361 F.3d 696,
707–10 (2d Cir. 2004). Defendants generally meet this burden by demonstrating when the
causes of action accrued. St. John’s Univ. v. Bolton, 757 F. Supp. 2d 144, 157 (E.D.N.Y. 2010).
Because the burden lies with defendants, “[t]he pleading requirements in the Federal Rules of
Civil Procedure . . . do not compel a litigant to anticipate potential affirmative defenses, such as
the statute of limitations, and to affirmatively plead facts in avoidance of such defenses.” Abbas
v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). On a Rule 12(b)(6) motion, the Court may only
dismiss an action based on the statute of limitations if, on the face of the complaint, it is clear the
claim is untimely. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). For a
defendant’s statute of limitations argument to succeed, the plaintiff must “plead[ ] itself out of
court.” In re marchFIRST Inc., 589 F.3d 901, 904–05 (7th Cir. 2009).
For medical malpractice claims, the cause of action accrues on the date of the alleged
negligent act or omission. Matter of Daniel J. v. New York City Health & Hosps. Corp., 77
N.Y.2d 630, 634 (1991).
Plaintiff’s Claim Against WCHC
WCHC argues plaintiff’s claim against it is time-barred.
The Court agrees.
Applicable Statute of Limitations
The parties disagree on which statute of limitations applies to the claim against WCHC.
However, the Court need not decide which law applies because it concludes the claim is timebarred under either one.
Under both the New York General Municipal Law § 50-i(1)(c) and the New York Public
Authority Law § 3316(1)(c), an action against a municipality for personal injury sounding in
negligence “shall be commenced within one year and ninety days after the happening of the
event upon which the claim is based.”
Under CPLR § 204(a), the statute of limitations is tolled while a petition for leave to
serve a late notice of claim is pending. See Campbell v. City of New York, 4 N.Y.3d 200, 203
(2005) (collecting cases).
Here, the alleged injury occurred, at the latest, on July 9, 2015, the date plaintiff
underwent spinal surgery. One year and eighty-three days later, on September 30, 2016, plaintiff
filed a verified petition for leave to serve a late notice of claim. (Ryu Decl. Ex. A, at 5). That
filing tolled the statute of limitations, of which seven days remained.
The statute of limitations began to run again when Justice Lefkowitz granted the petition
to serve a late notice of claim on January 23, 2017. The statute of limitations expired seven days
later, on January 30, 2017. Plaintiff filed the third amended complaint, in which he first named
WCHC as a defendant, on February 23, 2017, twenty-four days too late.
Thirty-Day Pleading Requirement
The parties dispute whether the pleading requirements in General Municipal Law § 50i(1)(b) and Public Authority Law § 3316(1)(b) toll the statute of limitations. This issue has no
bearing on plaintiff’s timeliness, however, because the late notice of claim was deemed timely
served nunc pro tunc.
Both General Municipal Law § 50-i(1)(b) and Public Authority Law § 3316(1)(b) require
a plaintiff to allege in the complaint that at least thirty days have elapsed since the service of a
notice of claim pursuant to General Municipal Law § 50-e. And General Municipal Law § 50e(1)(a) provides that a “notice of claim shall . . . be served . . . within ninety days after the claim
Plaintiff argues he was required to wait thirty days after Justice Lefkowitz granted the
petition to serve a late notice of claim, in order to comply with the thirty-day pleading rule.
That waiting period was not necessary.
Justice Lefkowitz’s January 23, 2017, order explicitly deemed the notice of claim “timely
served nunc pro tunc,” meaning it was retroactively deemed served no later than ninety days
after the July 9, 2015 injury, i.e., by October 7, 2015. (Ryu Decl. Ex. C at 2). Thus, on the day
Justice Lefkowitz issued the order, plaintiff could have truthfully pleaded that more than thirty
days had elapsed since the notice of claim was served on WCHC.
Accordingly, plaintiff’s claim against WCHC is dismissed as time-barred.
Because there was no need to wait thirty days properly to plead, the Court need not
determine whether that pleading requirement tolls the one year and ninety day statute of
limitations under either General Municipal Law § 50-i(1)(c) or Public Authority Law §
3316(1)(c). In any event, plaintiff has cited no authority for the proposition that the thirty-day
pleading requirement does toll the statute of limitations under either of these statutes.
TZC’s Cross-Claim Against WCHC
WCHC argues that if plaintiff’s claim against it is dismissed, the Court must also dismiss
TZC’s cross-claim against WCHC.
The Court disagrees.
A cross-claim, once properly made, does not require dismissal when the defendant to
whom it was addressed ceases to be a co-defendant. Lipford v. New York Life Ins. Co., 2003
WL 21313193, at *3–*4 (S.D.N.Y. June 9, 2003) (collecting cases).
Accordingly, the cross-claim brought by TZC against WCHC may proceed.
Defendant WCHC’s motion to dismiss the third amended complaint against it is
GRANTED. Defendant WCHC’s motion to dismiss the cross-claim filed against it by TZC is
The Clerk is instructed to terminate the pending motion. (Doc. #91).
Dated: November 13, 2017
White Plains, NY
Vincent L. Briccetti
United States District Judge
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