# Barbara v. United States

> District Court, E.D. New York · September 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10304927

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
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.
----------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304927. Public record. Not legal advice.