Barbara v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PHILIP BARBARA, as Preliminary

Executor of the Estate of FRANK BARBARA

a/k/a FRANK J. BARBARA a/k/a

FRANK JOSEPH BARBARA, deceased and

PHILIP BARBARA, Individually,

MEMORANDUM & ORDER

Plaintiff, 17-CV-1982(JS)(ST)

-against-

UNITED STATES OF AMERICA,

Defendant.

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APPEARANCES

For Plaintiff: David S. Dender, Esq.

50 Merrick Road

Rockville Centre, New York 11570

John Nicholas Miras, Esq.

The Bongiorno Law Firm, PLLC

1415 Kellum Place, Suite 205

Garden City, New York 11530

Jonathan Isidor Edelstein, Esq.

Edelstein & Grossman

501 5th Ave., Suite 514

New York, New York 10017

For Government: Robert B. Kambic, Esq.

Diane C. Leonardo-Beckmann, Esq.

James H. Knapp, Esq.

United States Attorney’s Office,

Eastern District of New York

610 Federal Plaza, 5th Floor

Central Islip, New York 11722

SEYBERT, District Judge:

Defendant the United States of America (the

“Defendant”) moves under Federal Rule of Civil Procedure (“FED.

R. CIV. P.”) 12(c) for a judgment on the pleadings granting its

motion to dismiss this Federal Tort Claims Act (“FTCA”) action.

(Def. Mot., D.E. 34; Pl. Cross-Mot., D.E. 36; Dender Decl., D.E.

37; Pl. Opp., D.E. 38; Pl. Ltr. Resp., D.E. 40; Def. Reply, D.E.

41.) In the alternative, Defendant moves for summary judgment

under FED. R. CIV. P. 56. (See, Def. Mot.) Plaintiff Philip

Barbara (“Plaintiff”) brings the action as the Preliminary

Executor of the Estate of Frank Barbara (the “Decedent”),

formerly a patient at the Department of Veteran Affairs (“VA”)

Medical Center located in Northport, New York (“Defendant” or

“VAMC Northport”). At the time of the Decedent’s death, he was

under the supervision of a home health aide. VAMC Northport had

contracted with a private company, All Metro Health Care

Services, Inc. (“All Metro”) who provided the home health aide.

The Complaint raises five causes of action: (1)

Defendant was negligent in, inter alia, hiring, screening,

training, and employing All Metro; (2) Defendant committed

medical malpractice in failing to render proper and adequate

medical care to the Decedent; (3) Defendant was liable under a

theory of respondeat superior; (4) Defendant was negligent in

hiring, training, and retaining its own employees, in addition

to All Metro and the home health aide who cared for the

Decedent; and (5) Defendant was liable for the Decedent’s

wrongful death. Plaintiff also asks for punitive damages. (See

generally Compl., D.E. 1.)

Defendant now seeks dismissal, arguing that the Court

lacks subject matter jurisdiction because of the FTCA’s

discretionary function exception. Defendant also contends that,

even if that exception does not apply, sovereign immunity

precludes suits against Defendant based on the actions of All

Metro, an independent contractor. Further, Defendant asserts

that Plaintiff’s failure to submit a certificate of merit with

the complaint warrants dismissal of the medical malpractice

claim, pursuant to New York State law. Defendant only addresses

punitive damages in its reply.

Plaintiff opposes the motion, but only in part. He

does not oppose the dismissal of the first, second, and fourth

causes of action; however, he opposes dismissal of the medical

malpractice and wrongful death causes of action. Plaintiff also

cross-moves for an extension of time to file the certificate of

merit, nunc pro tunc. (See Cross Mot.)

For the reasons that follow, Defendant’s Rule 12(c)

and summary judgment motion is GRANTED in part and DENIED in

part and Plaintiff’s cross-motion is denied as MOOT. The

parties agree to the dismissal of the first, third, and fourth

causes of action and they are therefore DISMISSED. In addition,

Plaintiff’s fifth cause of action for wrongful death, seemingly

brought under common law, is meritless. The Court denies the

motion with regard to the second cause of action, medical

malpractice, and denies Plaintiff’s cross-motion as moot. The

Court declines to rule on punitive damages at this stage of the

litigation.

The Court’s partial denial of Defendant’s motion is

without prejudice. The Parties are therefore directed to meet

and confer regarding a briefing schedule as to the potential

resubmission of that motion in order to substantively address

the medical malpractice and punitive damages issues.

BACKGROUND!

I. The Complaint and Initial Proceedings

Plaintiff brought this action in April 2017. In the

Complaint, Plaintiff alleged that: (1) the Decedent was a

patient at VAMC Northport; (2) Defendant contracted with All

Metro to provide home health services to New York State

residents, which included the Decedent (Compl. IT 6.1-6.4);

(3) Marge Herold (“Herold”) was a paraprofessional and/or home

health aide who worked for All Metro (Compl. JI 6.5); (4) Herold

was assigned to care for the Decedent at his home on a daily

basis, between 9:00 am and 5:00 pm (Compl. J 6.10); and (5) on

June 12, 2014, at approximately 2:00 pm, the Decedent choked to

death at his home while under Herold’s care and supervision

(Compl. @@ 6.11).

1 The matter was reassigned from the Honorable Arthur D. Spatt to

the undersigned on June 30, 2020.

Plaintiff raises five causes of action. First,

Defendant was negligent, careless, and reckless in contracting

with, screening, hiring, training, and retaining All Metro,

because the company and its employees, including Herold, were

neither qualified nor capable of providing appropriate medical

care (the “First Cause of Action”). (Compl. ¶ 6.15.) Plaintiff

further alleges that this negligence inured to the Decedent’s

detriment, resulting in his death. (Compl. ¶ 6.16.)

Second, Plaintiff argues that Defendant, in particular

VAMC Northport and its agents, committed medical malpractice in

failing to render proper and adequate medical and hospital care

to Decedent in accordance with community standards and elsewhere

(the “Second Cause of Action”). (Compl. ¶¶ 6.18–6.33.) Third,

Plaintiff contends that Defendant was liable for the acts of

Herold and All Metro under a theory of respondeat superior (the

“Third Cause of Action”). (Compl. ¶¶ 6.40-6.44.) Fourth,

Plaintiff alleges that Defendant negligently hired, trained, and

retained its agents, servants, and/or representatives, among

them All Metro and including Herold (the “Fourth Cause of

Action”). (Compl. ¶¶ 6.45-6.49.) Fifth, Plaintiff asserts a

wrongful death claim, alleging that the Decedent died solely as

a result of Defendant’s negligence and carelessness (the “Fifth

Cause of Action”). (Compl. ¶¶ 6.50-6.51.) Plaintiff seeks

compensatory damages, punitive damages, and costs. (Compl.

¶¶ 6.54-7.2.)

Plaintiff alleges that he brought the above-noted

claims in an administrative proceeding before the VA in April

2016 and the VA allegedly denied the claims on October 6, 2016.

(Compl. ¶ 3.1.)

Defendant answered the Complaint in November 2017.

(Answer, D.E. 19.) The case then proceeded to discovery.

II. The Pending Motions

Defendant now moves under Rule 12(c) for judgment on

the pleadings, or alternatively, under Rule 56 for summary

judgment. (See Def. Mot.) Plaintiff opposes that motion in

part and cross-moves for an extension of time to file the

certificate of merit, nunc pro tunc. (Pl. Cross-Mot.)

Plaintiff attaches to the motion a proposed certificate of

merit. (Pl. Cross-Mot.; Cert. of Merit, D.E. 37-1.) Those

motions are currently before the Court.

DISCUSSION

Defendant moves to dismiss the action on alternative

grounds. For the reasons that follow, the Court grants the

motion for judgment on the pleadings in part and denies the

motion in part, without prejudice. The Court does not reach the

punitive damages argument. As further stated below, the Court

denies Plaintiff’s cross-motion as moot.

I. Legal Standard for Rule 12(c)

A Court reviews a Rule 12(c) motion under the same

standard as Rule 12(b)(6) motions to dismiss. See Bank of N.Y.

v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).

“To survive a Rule 12(c) motion, the complaint ‘must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.’” Id. (quoting Hayden v.

Peterson, 594 F.3d 150, 160 (2d Cir. 2010)).

The issue on a motion to dismiss is “not whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Todd v.

Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting Scheuer

v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90

(1974)). “‘Determining whether a complaint states a plausible

claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009) (quoting Ashcroft v. Iqbal, 566 U.S. 662, 129 S. Ct. 1937,

1949–50, 173 L. Ed. 2d 868 (2009)).

II. Application to the Facts of this Case

Defendant raises the following arguments in support of

its Rule 12(c) motion. The discretionary function exception to

the FTCA bars Plaintiff’s claims. (Def. Br., D.E. 34-2, at 5–

8.) Even if that exception did not apply, the doctrine of

sovereign immunity precludes suits against the United States for

injuries caused by an independent contractor such as All Metro.

(Def. Br. at 9–11.) Plaintiff’s failure to file a certificate

of merit warrants dismissal of the medical malpractice claim, as

is required by New York Civil Practice Law and Rules (“CPLR”)

§ 3012-a(a)(1). (Def. Br. at 12–14.)

Plaintiff does not oppose Defendant’s first and second

arguments, and accordingly, it agrees with Defendant that the

Court should dismiss three of its claims: the First, Third, and

Fourth Causes of Action. (Pl. Opp. at 1.) These claims are

therefore DISMISSED. Plaintiff does oppose the dismissal of the

Second Cause of Action and argues that Defendant has made no

arguments concerning the Fifth Cause of Action, as well as the

request for punitive damages; thus, the Court should allow the

wrongful death claim to proceed. (Pl. Opp. at 9.)

As to the Second Cause of Action, Plaintiff argues

that the only basis proffered by Defendant for dismissing the

medical malpractice claim is Plaintiff’s failure to file the

certificate of merit and that defense was not asserted in the

Answer. (Pl. Opp. at 2.) Plaintiff also argues that CPLR

§ 3012-a does not mandate dismissal for the failure to file the

certificate of merit; instead, the proper remedy is a directive

to file the certificate. (Pl. Opp. at 2–6.) In addition,

Plaintiff asserts that the certificate of merit is largely a pro

forma document, and that the failure to file it does not

prejudice Defendant. (Pl. Opp. at 6.)

In any event, Plaintiff cross-moves under FED. R. OF

CIV. P. 6 for an extension, nunc pro tunc, to file the

certificate of merit because the failure to file the certificate

was the result of excusable neglect. (Pl. Opp. at 6–8.)

Specifically, the attorney who filed the Complaint did not know

that the New York State certificate of merit statute applied to

federal law; that inadvertence does not preclude a finding of

excusable neglect where the requirement is not provided in any

federal statute or rule and requires resort to esoteric case

law; that its delay in filing the certificate has not delayed

judicial proceedings; and that Plaintiff has litigated the

action in good faith. (Pl. Opp. at 7–8.)

In support, Plaintiff submits a declaration from

attorney David Dender (“Dender”), who erroneously neglected to

file the certificate of merit. (Dender Decl.) Therein, Dender

alleges, inter alia, he was in charge of managing Plaintiff’s

case until he left his law firm in in 2018. (Dender Decl. ¶ 2.)

Plaintiff also submitted a proposed certificate of merit. (See

Cert. of Merit.) Plaintiff has subsequently informed the Court

of a recent Appellate Division, Second Department decision that

supports its position regarding the proper remedy for failure to

file a certificate of merit. (Pl. Ltr. Resp.; Dec. 4, 2019 NYS

Appellate Div. Order, D.E. 40-1.)

In reply, Defendant reiterates that under the FTCA,

filing a certificate of merit is a substantive requirement.

(Def. Reply at 1.) It also asserts that: (1) the Dender

Declaration notwithstanding, Plaintiff does not explain why he

did not file a certificate of merit following Dender’s 2018

departure from the law firm; (2) Plaintiff cannot establish

excusable neglect in failing to file the certificate of merit

for more than two and a half years; and (3) although CPLR

§ 3012-a does not provide for dismissal as a sanction for

failure to file the certificate of merit, a number of courts

have held such a consequence to be appropriate. (Def. Reply at

2–7.)

As to the Fifth Cause of Action, Defendant argues that

it had in fact sought for its dismissal when it moved to dismiss

the action in its entirety. (Reply at 4.) In any event,

Defendant asserts that there is no cognizable cause of action

for wrongful death in New York State, and that the United States

cannot be held liable for punitive damages.

A. As to the First, Third, and Fourth Causes of Action

The parties agree that the Court should dismiss the

First, Third, and Fourth Causes of Action and they are therefore

DISMISSED with prejudice.

B. As to the Second Cause of Action

The parties raise several arguments as to the Second

Cause of Action. The Court addresses each of them in turn.

Plaintiff first contends that Defendant failed to raise the

certificate of merit issue in its answer, and that this omission

estops Defendant from raising the argument now. (Pl. Opp. at

2.) The Court disagrees.

The certificate of merit argument is an affirmative

defense, because it is a defendant’s assertion of facts and

arguments that, if true, would defeat a plaintiff’s claim. See

United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017) (An

affirmative defense is a defendant’s assertion of facts and

arguments that, if true, will defeat the plaintiff’s or

prosecution’s claim, even if all the allegations on the

complaint are true.” (internal quotation marks and brackets

omitted)); see also Jeter v. N.Y. Presbyterian Hosp., 172 A.D.3d

1338, 1339, 101 N.Y.S.3d 411 (2d Dep’t 2019) (describing

certificate of merit argument as an affirmative defense). A

party may raise an affirmative defense for the first time in a

Rule 12(c) motion. Davidson v. Cty. of Nassau, No. 18-CV-1182,

2020 WL 956887, at *3 n.3 (E.D.N.Y. Feb. 26, 2020); Arciello v.

Cty. of Nassau, No. 16-CV-3974, 2019 WL 4575145, at *4 (E.D.N.Y.

Sept. 20, 2019) (citing Cowan v. Ernest Codelia, P.C., 149 F.

Supp. 2d 67, 74 (S.D.N.Y. 2001) (determining that parties

raising res judicata defense for the first time in a Rule 12(c)

motion did “not affect the Court’s ability to entertain the res

judicata defense”)).

Plaintiff relies on a Supreme Court case, Day v.

McDonough, 547 U.S. 198, 202, 126 S. Ct. 1675, 164 L. Ed. 2d 376

(2006), to argue that, like statutory time limitations, the

defense is waived if defendant fails to raise it in its answer.

(Pl. Opp. at 2.) This argument fails to persuade, based upon

both the above noted authority on affirmative defenses, as well

as the Supreme Court’s holding in Day, which permitted district

courts to consider, sua sponte, the timeliness of a habeas

corpus petition. Day, 547 U.S. at 207–08, 126 S. Ct. at 1682–

83. Accordingly, the Court will consider the merits of the

certificate of merit defense.

The next issue for the Court is whether CPLR § 3012-a

mandates dismissal if a party fails to file a certificate of

merit. Section 3012-a provides that “[i]n any action for

medical, dental or podiatric malpractice, the complaint shall be

accompanied by a certificate, executed by the attorney for the

plaintiff.” As noted by Plaintiff, § 3012-a does not contain

language authorizing a court to dismiss a medical malpractice

action for failure to file the certificate of merit. Rabinovich

v. Maimonides Med. Ctr., 179 A.D.3d 88, 95–96, 113 N.Y.S. 3d 198

(2d Dep’t 2019) (collecting cases).

In Rabinovich, the most recent state court holding on

the issue, the New York Appellate Division, Second Department

concluded that a court should not dismiss an action for

noncompliance with § 3012-a. Id. at 96. Instead, a court, upon

finding that the statute applies to a particular action, should

provide plaintiffs with the opportunity to comply with § 3012-a.

Id. The court in that case noted that extending the time for

the plaintiff to file the certificate of merit was appropriate

where nothing in the record reflected that “the plaintiff’s

attorney’s failure to file a certificate of merit was motivated

by anything other than a good faith assessment that CPLR 3012-a

did not apply to the action.” Id. (granting plaintiff 60 days

from the service of the opinion to file the certificate of

merit).

This holding comports with recent decisions from

Courts in this Circuit, which allow for a party to present

excuses for the failure to file a certificate of merit. See

E.L.A. v. Abbott House, No. 16-CV-1688, 2018 WL 3104632, at *3

(S.D.N.Y. Mar. 27, 2018) (declaring that the failure to submit a

certificate, without reasons to excuse that failure, warrants a

dismissal of the action without prejudice) (citing Crowhurst v.

Szczucki, No. 16-CV-00182, 2017 WL 519262, at * 3 (S.D.N.Y.

Feb. 8, 2017)); cf. Sanchez v. N.Y. Correct Care Sols. Med.

Servs., P.C., No. 16-CV-6826, 2018 WL 6510759, at *13 (W.D.N.Y.

Dec. 11, 2018) (“[T]he mere failure to timely file a certificate

of merit does not support dismissal of an action.”) (internal

quotation marks and citations omitted). In E.L.A., the court

granted the plaintiff leave to file a certificate of merit,

reasoning that “‘actions should be considered on their merits,

particularly where there is no showing of prejudice suffered by

the movant.’” 2018 WL 3104632, at *3 (quoting Torres v. City of

N.Y., 154 F. Supp. 2d 814, 819 (S.D.N.Y. 2001).

Here, the facts support a similar result. Plaintiff

admits that failed to file the certificate of merit and

submitted a a sworn statement from counsel that he was unaware

that § 3012-a applied to FTCA actions. (Dender Decl. ¶ 4.) To

the extent that Defendant now claims prejudice for the non-

filing, its failure to address the issue in its answer, as well

as waiting until the pending motion’s reply to raise the issue,

undercuts their argument and supports Plaintiff’s confusion as

to § 3012-a’s applicability here. See 1199 SEIU United

Healthcare Workers E. v. Alaris Health at Hamilton Park, 809 F.

App’x 44, 46-47 (2d Cir. 2020) (summary order); Conn. Bar Ass’n

v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010) (“Issues

raised for the first time in a reply brief are generally deemed

waived.”). The Government is thus responsible in part for the

delay in proceedings it now claims to have caused it harm.

Defendant asserts that Dender’s excuse for the non-

filing of the certificate of merit, that he didn’t know that

§ 3012-a applied to FTCA actions, is inadequate. (Def. Reply

at 5.) The Court acknowledges that Plaintiff’s rationale does

not rest on particularly strong footing. However, the Court

agrees with the E.L.A. premise that where there is no prejudice

to the moving party, as is the case here, a court should proceed

to determine a claim on the merits. E.L.A., 2018 WL 3104632, at

*6; see Sanchez, 2018 WL 6510759, at *13 (finding dismissal

appropriate where “[p]laintiff not only failed to file a

certificate of merit along with any of the three versions of the

Complaint that have been filed so far, but she also failed to

address the deficiency after it was pointed out by [d]efendants

and has not offered any explanation”).

Based on the foregoing, Defendant’s motion as to the

Second Cause of action, on both Rule 12(c) and summary judgment

grounds is DENIED. As noted by Plaintiff, Defendant did not

raise a single substantive basis for dismissing the medical

malpractice claim. Accordingly, it shall proceed. In addition,

and unlike in E.L.A., the Court need not order Plaintiff to file

the certificate of merit, because Plaintiff has already attached

a proposed certificate of merit to its papers. The Court hereby

accepts the certificate of merit as filed as of the date of this

Order. As such, the Court denies Plaintiff’s cross-motion as

moot.

As noted above, the Court issues this denial without

prejudice to Defendant filing a motion that addresses the merits

of the medical malpractice claim. If Defendant elects to file a

motion, the parties shall file a proposed briefing schedule

within thirty [30] days of this Order.

C. As to the Fifth Cause of Action

The motion practice between the parties has generated

some confusion regarding the Fifth Case of Action. In the

complaint, Plaintiff alleged federal subject matter jurisdiction

based only on the FTCA. (See Compl.) Defendant, in the pending

motion, refers to the Fifth Cause of Action as a “common law”

wrongful death claim. (Def. Br. at 3.) Plaintiff does not

challenge this categorization in his opposition, which Defendant

reinforces in its reply. (Def. Reply at 1–2.) In addition,

Plaintiff did not apply Defendant’s multiple FTCA defenses to

the Fifth Cause of Action, further supporting the assertion that

the cause of action is a common law claim. Based on these

exchanges, the Court interprets the Fifth Case of Action as

arising under common law.

This common law claim is unavailing. There is no

common law wrongful death cause of action to recover damages in

New York, rather, a party can only bring a statutory wrongful

death action. See Junger v. Singh, 393 F. Supp. 3d 313, 322

(W.D.N.Y. 2019); Mann v. United States, 300 F. Supp. 3d 411,

421-22 (N.D.N.Y. 2018) (“New York common law does not recognize

causes of action to recover damages for wrongful death separate

from the statutory cause of action* accorded to a decedent’s

distributees.”) (citing Liff v. Schildkrout, 49 N.Y.2d 622, 631-

32, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980)). The Fifth Cause

of Action raises no state statutory grounds in the Complaint.

Accordingly, the Court grants Defendant’s motion for judgment on

the pleadings as to the common law wrongful death claim.

The Court further notes, in the alternative, that the

Fifth Cause of Action would fail even if brought under the FTCA.

Defendant moved to dismiss the Complaint in its entirety,

contending that the discretionary function exemption and

sovereign immunity bars the FTCA claims. (Def. Br. at 5-11.)

Plaintiff in opposition did not raise any arguments with regard

to the Fifth Cause of Action as it pertained to those defenses.

The Court thus deems that claim abandoned. See Black Lives

Matter v. Town of Clarkstown, 354 F. Supp. 3d 313, 318 on.l

(declining, in Rule 12(b) (6) proceedings, to consider certain

N.Y. E.P.T.L. §5-4.1.

17

arguments that the plaintiff failed to address in opposition to

a motion to dismiss, on abandonment grounds); Stinnett v. Delta

Air Lines, Inc., 278 F. Supp. 3d 599, 617 (E.D.N.Y. 2017)

(“Delta moved to dismiss this claim and [p]laintiff neither

disputes Delta’s arguments, nor defends them in any [ ] way.

Where, as here, [p]laintiff fails to address Delta’s arguments

in her opposition, the Court deems [p]laintiff’s silence a

concession that [p]laintiff is abandoning her claim.”).

D. As to the Request for Punitive Damages

The Court declines to deny the request for punitive

damages, although it does not rule on whether Plaintiff is

entitled to such damages at this early stage of the litigation.

The FTCA “‘bars the recovery only of what are legally considered

punitive damages under traditional common-law principles.’”

Malmberg v. United States, 816 F.3d 185, 192 (2d Cir. 2016)

(emphasis in original) (quoting Molzof v. United States, 502

U.S. 301, 312, 112 S. Ct. 711, 718, 116 L. Ed. 2d 731 (1992))

(emphasis in original). The holding in Molzof permits federal

courts to consult state law in determining whether it may award

punitive damages in an FTCA action. See Malmberg, 816 F.3d at

192–93 (“Damages in FTCA actions are determined by the law of

the state in which the tort occurred.”).

Here, Defendant raised a punitive damages argument for

the first time in its reply. Courts generally do not address

such arguments and the Court sees no reason for departing from

that practice here. Brown v. Ionescu, 380 F. App’x 71, 71 n.1

(2d Cir. 2010) (summary order); McBride v. BIC Consumer Prods.

Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009); Miranda v. S. Country

Cnt. Sch. Dist., No. 20-CV-0104, 2020 WL 4287165, at *2

(E.D.N.Y. July 27, 2020). Additionally, Plaintiff does not

specify in the Complaint or the opposition its basis for

punitive damages for any of its claims, let alone the one for

medical malpractice. If Defendant files another motion, the

Court encourages the parties to clarify this issue upon

resubmission.

CONCLUSION

For the foregoing reasons, Defendant’s Rule 12(c)

motion (D.E. 34) is GRANTED as to the First, Third, Fourth, and

Fifth causes of action and these claims are DISMISSED with

prejudice. The motion is DENIED as to the Second Cause of

Action without prejudice to Defendant filing a motion that

addresses the substance of the medical malpractice claim and the

request for punitive damages. If Defendant elects to file a

motion, the parties shall file a proposed briefing schedule to

the docket within thirty [30] days of this Order. Plaintiff’s

cross-motion (D.E. 36) is DENIED AS MOOT. The Court deems

Plaintiff’s proposed certificate of merit as to the Second Cause

of Action as filed on the date of this Order.

The Clerk of the Court is directed to docket the

Certificate of Merit (at D.E. 37-1) on the docket as of the date

of this Order.

SO ORDERED.

/s/_JOANNA SEYBERT ___

Joanna Seybert, U.S.D.J.

Dated: September 23 , 2020

Central Islip, New York