# Costin v. Glens Falls Hospital

> District Court, N.D. New York · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11122641

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11122641

## How later opinions describe it (automated extraction)

- explaining how 42 U.S.C. § 233(e) abrogates the intentional tort exception of the FTCA under 28 U.S.C. § 2680(h)
- holding that a Home Depot employee who assaulted the plaintiff with a box cutter after a holiday party was an act "committed for personal motives unrelated to the furtherance of his employment"

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________

NICOLE COSTIN, individually and on behalf of
her minor son, BABY A,

Plaintiff,
vs. 1:22-CV-296
(MAD/CFH)
GLENS FALLS HOSPITAL, KEVIN M. GRASSI, M.D.,
STACY L. RALPH, KAREN RANTILLA,
LYNETTE M. BISS, NICOLE BENNETT,
JENNIFER NIX, AMY HOOPER, JODIE SMITH,
STEPHANIE DECHIENE, and ALYCIA N. GREGORY,

Defendants.
____________________________________________

APPEARANCES: OF COUNSEL:

SCHULTE ROTH & ZABEL LLP TALEAH E. JENNINGS, ESQ.
919 Third Avenue WILLIAM H. GUSSMAN, ESQ.
New York, New York 10022 JULIA BESKIN, ESQ.
Attorneys for Plaintiff SHANNON B. WOLF, ESQ.
SKYLAR KLEIN, ESQ.
YANA HOLDEN, ESQ.

WHITEMAN OSTERMAN & HANNA LLP ROBERT S. ROSBOROUGH, IV ESQ.
One Commerce Plaza JENNIFER MARIE YETTO, ESQ.
Suite 1900 JUSTINE M. CASE-FITZGERALD
Albany, New York 12260 ESQ.
Attorneys for Defendants Glens Falls
Hospital, Kevin M. Grassi M.D., Stacey
L. Ralph, Jennifer Nix, Amy Hooper,
Jodie Smith, Stephanie Dechene, and
Alycia N. Gregory

REBAR KELLY CATHLEEN KELLY REBAR, ESQ
470 Norristown Road, Suite 201 PATRICK J. HEALEY, ESQ.
Blue Bell, Pennsylvania 19422
Attorneys for Defendant Karen Ranttila

OFFICE OF THE UNITED JOHN D. HOGGAN, JR., AUSA
STATES ATTORNEY
James T. Foley U.S. Courthouse KAREN FOLSTER LESPERANCE,
445 Broadway, Room 218 AUSA
Albany, New York 12207
Attorneys for Defendant Lynette M. Biss

MARTIN CLEARWATER & BELL LLP CHRISTOPHER JOSEPH DANIEL,
245 Main Street, Suite 501 ESQ.
White Plains, New York 10601
Attorney for Defendant Nicole Bennett

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 28, 2022, Plaintiff Nicole Costin, individually and on behalf of her minor son,
Baby A, commenced this action against Defendants Glens Falls Hospital ("GFH"); Dr. Kevin M.
Grassi, M.D.; Nurse Stacey L. Ralph; Nurse Karen Rantila; Midwife Lynette M. Biss; Midwife
Nicole Bennett; Nurse Jennifer Nix; Nurse Amy Hooper; Nurse Jodie Smith; Social Worker
Stephanie Dechene; and Social Worker Alycia N. Gregory. See Dkt. No. 1. Plaintiff filed an
Amended Complaint on June 23, 2022. See Dkt. No. 14. Plaintiff's Amended Complaint raises
eleven causes of action including violations of the Americans with Disabilities Act ("ADA") and
Rehabilitation Act ("RA") against GFH and various New York state law claims. See id. at ¶¶ 76-
142. As relevant to this motion, Plaintiff raises claims of assault and battery against Defendant
Biss. See id. at ¶ 122.
Currently before the Court is the Government's renewed motion to substitute itself as a
defendant in place of Defendant Biss and to dismiss Plaintiff's claims against it for lack of subject
matter jurisdiction. See Dkt. No. 93-1 at 3. The Government filed its initial motion to substitute
on January 19, 2023, see Dkt. No. 61, which Plaintiff opposed on February 9, 2023. See Dkt. No.
62. On February 15, 2023, the Court denied the Government's motion as moot because it
dismissed Plaintiff's Amended Complaint. See Dkt. No. 63. Plaintiff appealed this Court's
judgment to the Second Circuit. See Dkt. No. 65. The Second Circuit affirmed in part, reversed
in part, and vacated in part the Court's judgment, and reinstated Plaintiff's ADA and RA claims.
See Costin v. Glens Falls Hosp., 103 F.4th 946, 956 (2d Cir. 2024). As a result, the dismissal of
the state law claims against Defendant Biss was vacated by the Second Circuit. See id.
In its motion to substitute, the Government argues that, pursuant to the Federal Tort
Claims Act ("FTCA") and the provisions of 42 U.S.C. § 233(a), the United States is the proper
defendant and the FTCA is the exclusive remedy for Plaintiff's claims against Defendant Biss.

See Dkt. No. 93-1 at 5-7. Plaintiff disagrees, arguing that Defendant Biss was not acting within
the scope of her employment and, therefore, the Government should not be substituted as a
defendant. See Dkt. No. 107 at 12-16.1
For the following reasons, the Government's motion to substitute and dismiss Plaintiff's
Amended Complaint as against Defendant Biss is granted.
II. BACKGROUND
The Court will briefly summarize the allegations relevant to the pending motion but
otherwise assumes the parties' familiarity with the facts and procedural history set forth in its
February 15, 2023, Memorandum-Decision and Order. See Dkt. No. 63 at 3-8.

1 Defendants GFH, Dr. Grassi, Nurse Ralph, Nurse Nix, Nurse Hooper, Nurse Smith, Social
Worker Dechene, and Social Worker Gregory (collectively, where appropriate, the "GFH
Defendants") submitted a memorandum expressing no opposition to the Government's motion to
substitute. See Dkt. No. 117. The GFH Defendants oppose the Government's motion only to the
extent that Plaintiff's claims ADA and RA claims "may be broadly construed to allege
involvement of Defendant Biss in the implementation of the allegedly discriminatory GFH
policies, and to ensure the continued viability of the GFH Defendants' cross claims against
Defendant Biss, [HHHN], or the United States for indemnification and/or contribution." Id. at 6.
T he Court notes, however, that the ADA and RA claims asserted in the Amended Complaint are
brought solely against Defendant GFH. See Dkt. No. 14 at ¶¶ 76-86.
This case arises from the events and procedures surrounding Plaintiff's childbirth
experience at GFH on March 29, 2021. See Dkt. No. 14 at ¶ 24. When Plaintiff's water broke,
"she immediately reached out to Hudson Headwaters Health Network Women's Health
["HHHN"], (an entity that works with GFH to provide midwives during delivery at GFH)." Id. at
¶ 24. Plaintiff alleges that Defendant Biss was a Certified Nurse Midwife employed by HHHN
who, along with other individual Defendants, entered Plaintiff's hospital room at GFH during her
labor to check Plaintiff's dilation. See id. at ¶¶ 13, 33. At the time, Plaintiff was taking Subutex,
a medication prescribed by her primary care physician, for her substance abuse disorder. See id.

at ¶ 28. After experiencing several hours of contractions at GFH, Defendant Biss entered
Plaintiff's room, allegedly stating that GFH would be withholding an epidural, despite Plaintiff's
repeated requests for the epidural. See id. at ¶ 37.
After eight hours of labor without an epidural, Baby A was born on March 29, 2021, at
10:14 p.m., and "exited the birth canal with a completely bruised face, and the blood vessels in
both of his eyes were burst." Id. at ¶ 38. Additionally, "several inches of [Plaintiff's] body were
ripped open during delivery." Id. Plaintiff alleges that after Baby A was born, Defendant Biss
and student midwife Defendant Bennett, "were actively looking between her legs" and began to
"repair her torn vaginal area." Id. at ¶ 40. Plaintiff contends she was "weak, exhausted and
shaking from pain" and told Defendant Biss "to stop." Id. Nonetheless, they "continued the

procedure through completion" without "numb[ing] the area[.]" Id. Plaintiff "could feel the
needle entering and exiting her body." Id. Plaintiff alleges that Defendant Biss committed assault
and battery when she and Defendant Bennett "inserted a needle through her perineal area without
her consent, and continued to do so over her express objection." Id. at ¶ 123. Plaintiff seeks
"damages in an amount to be determined at trial[]" from Defendant Biss. Id. at ¶ 124.
On December 16, 2022, the United States Attorney for the Northern District of New York,
pursuant to 42 U.S.C. § 233(c) and 28 C.F.R. § 15.3, certified that Defendant Biss was, at all
relevant times to the case, a Certified Nurse Midwife employed by HHHN acting within the scope
of her employment. See Dkt. No. 93-3 at 2. Additionally, the United States Attorney certified
that HHHN is a "federally deemed health center[.]" Id. As of January 1, 2020, HHHN was
certified by the Department of Health and Human Services ("HHS") to have qualified as a Public
Health Service employee under 42 U.S.C. § 233(g) and, therefore, eligible for FTCA coverage
during all times relevant to this case. See Dkt. No. 93-4 at ¶ 5.

III. DISCUSSION
A. Standard of Review
The Government moves to dismiss Plaintiff's Amended Complaint for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that once it is
substituted as a defendant, Plaintiff's claims must be dismissed because she failed to exhaust her
administrative remedies. See Dkt. No. 93-1 at 9. "It is a fundamental precept that federal courts
are courts of limited jurisdiction." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374
(1978). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, "[a] case is properly
dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or
constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000). Further, "[t]he party asserting subject matter jurisdiction carries the burden of
establishing, by a preponderance of the evidence, that jurisdiction exists." Landau v. Eisenberg,
922 F.3d 495, 497 (2d Cir. 2019) (citation omitted). In ruling on a motion to dismiss for lack of
subject matter jurisdiction, a district court "may refer to evidence outside the pleadings."
Makarova, 201 F.3d at 113. "When evaluating a motion to dismiss pursuant to Rule 12(b)(1), the
district court must resolve all ambiguities and draw all inferences in favor of the plaintiff."
Stegemann v. United States, No. 9:21-CV-00949, 2024 WL 5182184, *2 (N.D.N.Y. Dec. 20,
2024) (citing Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).
B. Statutory Framework
Generally, "'[t]he United States, as sovereign, is immune from suit [unless] it consents to
be sued,' and hence may be sued only to the extent that it has waived sovereign immunity by
enacting a statute consenting to suit." Millares Guiraldes de Tineo v. U.S., 137 F.3d 715, 719 (2d
Cir. 1998) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA allows a

limited waiver of the United States' sovereign immunity
for certain classes of torts claims and provides that the federal
district courts shall have exclusive jurisdiction over damages claims
against the United States for injury or loss of property, or for
personal injury or death "caused by the negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment. "

Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (quoting 28
U.S.C. § 1346(b)(1)). If a tort claim is brought against an employee of the Government,
[u]pon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any civil
action or proceeding commenced upon such claim in a United
States district court shall be deemed an action against the United
States under the provisions of this title and all references thereto,
and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).
The Federally Supported Health Centers Assistance Act ("FSHCAA") "authorizes the
Secretary of the Department of Health and Human Services to deem certain health centers that
receive federal funds, and their employees, to be employees of the Public Health Service ("PHS")
for the purposes of 42 U.S.C. § 233." Agyin v. Razmzan, 986 F.3d 168, 172 (2d Cir. 2021).
"Under § 233(a), PHS employees are entitled to the protections of the . . . FTCA . . . including
'absolute immunity . . . for actions arising out of the performance of medical or related functions
within the scope of their employment.'" Id. (quoting Hui v. Castaneda, 559 U.S. 799, 806
(2010)). "[O]nce the Secretary makes a determination that an entity [or an . . . employee . . . of an
entity] is deemed to be an employee of the Public Health Service for purposes of [§ 233], the
determination [is] . . . final and binding . . . ." Id. (quoting 42 U.S.C. § 233(g)(1)(F)).
The FSHCAA "protects 'employees of the Public Health Service from being subject to suit

while performing medical and similar functions by requiring that such lawsuits be brought against
the United States instead.'" Kelley v. Richford Health Ctr., Inc., 115 F.4th 132, 136 (2d Cir. 2024)
(quoting Cuoco v. Mortisugu, 222 F.3d 99, 107-08 (2d Cir. 2000)). Under the FSHCAA, when a
tort action is brought against a federal employee working for the PHS, the employee is substituted
by the United States and the FTCA becomes the exclusive remedy "for damage for personal
injury, including death, resulting from the performance of medical, surgical, dental, or related
functions . . . , by any commissioned officer or employee of the Public Health Service while
acting within the scope of his office or employment . . . ." Cuoco, 222 F.3d at 107 (quoting 42
U.S.C. § 233(a)). The Second Circuit has interpreted the FTCA's purpose to "both to allow
recovery by people injured by federal employees or by agents of the Federal Government, and, at

the same time, to immunize such employees and agents from liability for negligent or wrongful
acts done in the scope of their employment." Celestine, 403 F.3d at 80 (citing 28 U.S.C. §
2679(b)(1); 42 U.S.C. § 233(a)); see also Cuoco, 222 F.3d at 107.
This statutory framework renders the question of substitution twofold: (1) whether the
defendant was acting within the scope of her employment; and (2), whether the injury the plaintiff
seeks compensation for was one "'resulting from the performance of medical . . . or related
functions[.]'" Cuoco, 222 F.3d at 107 (quoting 42 U.S.C. § 233(a)). Here, Plaintiff does not
dispute Defendant Biss' status as an HHHN employee. See Dkt. No. 61-2 at ¶ 6.2 Rather,
Plaintiff challenges the Government's scope of employment certification and determination that
Defendant Biss' conduct constituted a medical function. See Dkt. No. 107 at 12, 16.
C. Scope of Employment
For purposes of substitution, the FTCA provides that the Attorney General may certify
that a defendant was acting within the scope of their employment at the time the claim arose and,

[u]pon certification . . . any civil action or proceeding commenced
upon such claim in a United States district court shall be deemed an
action against the United States under the provisions of this title and
all references thereto, and the United States shall be substituted as
the party defendant.

28 U.S.C. § 2679(d)(1). The certification may also be provided by the United States Attorney's
Office by virtue of the authority vested in it pursuant to 28 C.F.R. §§ 15.3-15.4. See Dkt. No. 93-
3 at 2. Here, as explained, the United States Attorney for the Northern District of New York
certified that Defendant Biss, during all times relevant to this case, was acting within the scope of
her employment as a Certified Nurse Midwife for HHHN. See id.
The Supreme Court has held that a plaintiff may challenge a scope of employment
certification because the certification is "'the first, but not the final word'" on the scope of
employment inquiry for substitution. Osborn v. Haley, 549 U.S. 225, 246 (2007) (quoting De
Martinez v. Lamagno, 515 U.S. 417, 432 (1995)). The certification "does not conclusively

2 HHHN is a grantee of the U.S. Department of Health and Human Services ("HHS") and a
designated Federally Qualified Health Center ("FQHC") and eligible for FTCA coverage effective
as of January 1, 2020, and throughout all times relevant to the Amended Complaint. See Dkt. No.
93-4 at ¶ 5; see also Dkt. No. 61-2 at ¶ 6 (citing About Us, Hudson Headwater Health Network,
h ttps://www.hhhn.org/about/ (last visited July 31, 2025)).
establish as correct the substitution of the United States as defendant in place of the employee."
Lamagno, 515 U.S. at 434. If disputed, the scope of employment certification is reviewed by the
district court "de novo for purposes of substituting the United States as a defendant and precluding
an action against the federal employee." McHugh v. Univ. of Vermont, 966 F.2d 67, 72 (2d Cir.
1992), abrogated on other grounds by Osborn, 548 U.S. at 247. "Such review is triggered by the
government's motion for substitution and opposition papers from the plaintiff that allege with
particularity facts relevant to the scope-of-employment issue." Id. at 74. On review, the burden
shifts "to the plaintiff to prove, by a preponderance of the evidence, that defendants were acting

outside the scope of their employment." Corley v. United States Dep't of Justice, No. 14-CV-925,
2016 WL 11395009, *5 (E.D.N.Y. Sept. 6, 2016) (citing Griebsch v. Weaver, No. 7:05-CV-0958,
2005 WL 2260374, *2 (N.D.N.Y. Sept. 16, 2005)); see also Scott v. United States, No. 24-CV-
01506, 2025 WL 836557, *5 (E.D.N.Y. Mar. 17, 2025). "[I]f 'the District Court determines that
the employee in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the
scope of his employment,' . . . the substitution motion must be denied, and the suit will proceed
against the government employee in a personal capacity." Carroll v. Trump, 49 F.4th 759, 766
(2d Cir. 2022) (quoting Osborn, 549 U.S. at 231) (internal citation and alteration omitted).
"[T]he district court applies state law principles pertaining to when intentional torts
conduct falls within the scope of a party's employment." Bello v. United States, 93 Fed. Appx.

288, 289 (2d Cir. 2004) (citing McHugh, 966 F.2d at 75). "The court must view the tortious
conduct in the light most favorable to plaintiff, but makes its own findings of fact with respect to
the scope of the tortfeasor's employment[.]" Id. at 288-89 (citing McHugh, 966 F.2d at 74-75). In
New York, "'[t]here is no single mechanical test to determine whether at a particular moment an
employee is engaged in the employer's business . . . .'" Aryai v. Forfeiture Support Assocs., 25 F.
Supp. 3d 376, 389 (S.D.N.Y. 2012) (quoting Rausman v. Baugh, 248 A.D.2d 8, 10 (2d Dep't
1998)). The New York Court of Appeals has provided the following factors for a court to
consider in making this determination:
[1] the time, place and occasion for the act; [2] the history of the
relationship between employer and employee as spelled out in
actual practice; [3] whether the act is one commonly done by such
an employee; [4] the extent of departure from normal methods of
performance; and [5] whether the specific act was one that the
employer could reasonably have anticipated.

Fountain v. Karim, 838 F.3d 129, 138 (2d Cir. 2016) (quoting Riviello v. Waldron, 47 N.Y.2d
297, 303 (1979)). "'With respect to [the] foreseeability requirement, New York courts require
foreseeability of general, rather than specific, acts.'" Roseblatt v. St. John's Episcopal Hosp., No.
11-CV-1106, 2012 WL 294518, *6 (E.D.N.Y. Jan. 31, 2012) (quoting Griebsch, 2005 WL
2260374, at *3). "[W]here the element of general foreseeability exists, even intentional tort
situations have been found to fall within the scope of employment." Riviello, 47 N.Y.2d at 304.
Courts assess "'whether the act was done while the servant was doing his master's work, no matter
how irregularly, or with what disregard of instructions.'" Rosse v. United States, 110 F. Supp. 3d
415, 423 (N.D.N.Y. 2015) (quoting Riviello, 47 N.Y.2d at 299).
Plaintiff argues that Defendant Biss was not acting within the scope of her employment as
her alleged actions constitute assault and battery. See Dkt. No. 107 at 15. The FTCA provides an
intentional tort exception for federal employees' immunity for, inter alia, "[a]ny claim arising out
of assault [or] battery . . . ." 28 U.S.C. § 2680(h). However, § 233(e) eliminates the FTCA's
intentional tort exception in cases of "assault or battery arising out of negligence in the
performance of medical, surgical, dental, or related functions, including the conduct of clinical
studies or investigations." 42 U.S.C. § 233(e); see also Levin v. U.S., 568 U.S. 503, 508-09
(2013) (explaining how 42 U.S.C. § 233(e) abrogates the intentional tort exception of the FTCA
under 28 U.S.C. § 2680(h)).
Plaintiff argues that Defendant Biss' actions were intentional torts of assault and battery
that "do not arise out of negligence[]" and, therefore, do not fall under § 233(e). Dkt. No. 107 at
16. The Government argues that "Plaintiff's focus upon the nature of the cause of action she
alleged is misplaced" and that once the Government established Plaintiff's claims arose out of
"'the performance of medical, surgical, dental, or related functions'" the FTCA became the
exclusive remedy regardless of "whether or not the cause of action alleged sounds in negligence."

Dkt. No. 109 at 5 (citing 42 U.S.C. § 233(a)).
In Cuoco v. Moritsugu, the Second Circuit rejected the plaintiff's argument that § 233(e)
only provides immunity from medical malpractice claims because there is "nothing in the
language of § 233(a) to support that conclusion." Cuoco, 222 F.3d at 108. The Second Circuit
stated that "[w]hen Congress has sought to limit immunity to medical malpractice claims it has
done so explicitly." Id. (citing 38 U.S.C. § 7316(a)(1)) (explaining Congress' decision to make
the FTCA the exclusive remedy for claims arising out of medical malpractice and negligence for
healthcare providers working for the Veterans Health Administration); see also Teresa T. v.
Ragaglia, 154 F. Supp. 2d 290, 299 (D. Conn. 2001) ("Nothing in the statute suggests that the
immunity it provides is limited to negligence actions only"); K.R. ex rel. Perez v. Silverman, No.

08-CV-2192, 2009 WL 2959580, *7 (E.D.N.Y. Aug. 13, 2009) ("[T]he plain language of the
statute—'resulting from the performance of medical . . . or related functions'—indicates that it
covers more than garden variety medical malpractice claims"). Plaintiff has not provided any
legal support for her argument that § 233 applies only to medical malpractice or negligence
claims. See Dkt. No. 107 at 16-18. Therefore, the Court will not exclude from the statute's
application claims of alleged assault and battery, provided the requirements of the provision are
met—the tortious conduct was within the scope of one's employment and was a part of "medical .
. . or related functions." 42 U.S.C. § 233(a).
"[I]n cases involving a use of force, whether an employee is acting within the scope of
employment requires consideration of whether the employee was authorized to use force to
effectuate the goals and duties of the employment." Rivera v. State of New York, 34 N.Y.3d 383,
390 (2019) (citing Sauter v. New York Tribune, Inc., 305 N.Y. 442, 445 (1953)). In professions
"for which some physical contact with others is permissible or even expected, it may be difficult

to determine whether a challenged action falls far enough outside the boundaries attendant to the
employment relationship such that the employee should be solely liable for their respective
tortious conduct." Id. Nonetheless, "[a]n employer will not be responsible for the torts of an
employee who is not acting in furtherance of his employer's business or who acts only on personal
motives." A.W. by E.W. v. New York Dep't of Educ., 702 F. Supp. 3d 46, 53 (E.D.N.Y. 2023)
(citing N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002)) (holding that a hospital employee
who sexually assaulted a patient was acting his outside scope of employment because the
employee acted wholly on personal motives). However, even in cases which may involve
personal motives "it is 'well established that intentional torts may still fall within the scope of
employment, and the motivation for such conduct . . . is but one of several for [the court's]

consideration pertaining to whether such acts were foreseeable as "a natural incident of the
employment."'" Id. (quoting M.K. v. State, 216 A.D.3d 139, 143 (3d Dep't 2023)) (additional
quotation omitted).
New York courts have held that claims of assault, when acted upon from personal
motives, are generally outside the scope of one's employment. See e.g., Judith M. v. Sisters of
Charity Hosp., 93 N.Y.2d 932, 933 (1999) (concluding that a hospital orderly who sexually
assaulted a patient was acting outside the scope of employment when giving a patient a bath);
Montalvo v. Episcopal Health Servs., Inc., 172 A.D.3d 1357, 1360 (2d Dep't 2019) (holding that
doctor's alleged sexual assault "is not in furtherance of an employer's business and is a clear
departure from the scope of employment, having been committed for wholly personal motives");
Boatman v. Cnty. of Onondaga, 229 A.D.3d 1214, 1215 (4th Dep't 2024) (determining that
probation officer's alleged sexual assault of the plaintiff was outside the scope of employment);
Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893, 897 (2d Dep't 2009) (holding that a Home Depot

employee who assaulted the plaintiff with a box cutter after a holiday party was an act
"committed for personal motives unrelated to the furtherance of his employment"); Maldonado v.
Allum, 208 A.D.3d 470, 472 (2d Dep't 2022) (holding that a pizza delivery driver who kicked and
flailed while a police officer ticketed him for a broken headlight was acting outside the scope of
his employment and not in furtherance of his employer's business).
Here, the Government argues that "[t]here is no question that [Defendant] Biss was 'acting
in furtherance of her employer's work' at the time she assisted in Plaintiff's medical procedure."
Dkt. No. 109 at 5. The Government contends that Plaintiff has not presented a credible basis to
assert that Defendant Biss was acting on personal motives and not in the furtherance of her
employer's business in providing patient care. See Dkt. No. 93-1 at 7. The Government also

notes that "'courts have routinely honored certifications under the FTCA even for intentional
tortious conduct as long as the defendants were acting in furtherance of Government business.'"
Id. (quoting Lipkin v. U.S. S.E.C., 468 F. Supp. 2d 614, 623 (S.D.N.Y. 2006)); see e.g., Asto v.
Mirandona, 372 F. Supp. 2d 702, 710 (E.D.N.Y. 2005) (honoring certification as alleged
defamatory statements were made within the scope of defendant's employment with a federal
agency); Catania v. Herbst, 919 F. Supp. 2d 266, 272 (E.D.N.Y. 2013) (honoring certification in
part because the plaintiff did not sufficiently establish that the defendant was acting on personal
motives in making allegedly defamatory statements); Smith v. Brown, 296 F. Supp. 3d 648, 659
(S.D.N.Y. 2017) (upholding the Government's certification that the defendant was acting within
scope of employment where the defendant physically assaulted the plaintiff at a work party as the
plaintiff had not sufficiently shown defendant acted on personal motives or animosity).
Plaintiff argues that Defendant Biss' actions, though they occurred while she was on duty
at GFH as an employee of HHHN, did not occur within the scope of her employment. See Dkt.

No. 107 at 12. Plaintiff applies the Riviello factors to argue that Defendant Biss' actions,
allegedly constituting assault and battery, were taken outside the scope of her employment, but
Plaintiff makes no mention of any personal motivation influencing Defendant Biss' conduct. See
id. at 14. Plaintiff argues that despite the location of the event,
[a]ll other factors that can be gleaned from the Court submissions
demonstrate that Defendant Biss was not, in fact, acting within the
scope of her employment: patients who have all mental capacities
are not commonly held down by their legs and subject to sharp
objects inserted into their bodies against their will by medical
providers at a hospital (third factor); such forceful, violent, and
unauthorized procedures, against a patient's will, certainly depart
from normal methods of performance by nurse midwives (fourth
factor); and those acts would not (or should not) have been
reasonably anticipated by any medical provider's employer (fifth
factor) . . . . Here, not only does the fifth factor weigh in favor of
finding that Defendant Biss was acting outside the scope of her
employment when she engaged in the conduct at issue in this case,
but facts and allegations pertaining to other factors (third and
fourth) do as well.

See id. at 14 (emphasis in original).
Plaintiff fails to present a single legal or medical citation to support her contentions.
Rather, "[v]aginal childbirth frequently causes tears or lacerations of the mother's vagina and
surrounding perineal (i.e., the area between the anus and the vagina) tissue." Woodman v. United
States, 602 F. Supp. 3d 265, 274 (D.N.H. 2022); see also Cleveland Clinic, Vaginal Tears During
Childbirth, HEALTH LIBRARY, (Aug. 1, 2025, 10:46 AM), https://my.clevelandclinic.org/health/
diseases/21212-vaginal-tears-during-childbirth ("Up to 90% of women who give birth will have
some tearing during a vaginal delivery . . . . Providers treat most tears right in the delivery room").
Because the alleged assault and battery occurred while Defendant Biss was on duty at GFH and
while conducting a medical procedure, the Court finds that Plaintiff has failed to establish by a
preponderance of the evidence that Defendant Biss acted outside the scope of her employment.

D. "Medical . . . or Related Functions" Under 42 U.S.C. § 233(a)
Plaintiff also argues that substitution is barred because, "[o]nce [she] voiced her lack of
consent, Defendant Biss was no longer performing any medical function." Dkt. No. 107 at 11.
The Government disagrees and asserts "that Plaintiff's allegation of assault and battery against
Ms. Biss arise from her 'performance of medical . . . or related functions'" because Defendant
Biss' "conduct took place at GFH during the course of a medical 'procedure' to 'repair [Plaintiff's]
torn vaginal area' following delivery." Dkt. No. 93-1 at 8 (quoting Dkt. No. 14 at ¶ 40).
"In construing the terms of a statute, [courts] look first to its language to ascertain its plain
meaning." Cheung v. United States, 213 F.3d 82, 89 (2d Cir. 2000) (citing Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997)). "Because the [FTCA] does not define any of the relevant terms,

the 'starting point' is the 'statute's plain meaning,' which is driven by the 'ordinary, common-sense
meaning' of its terms and 'the specific context in which that language is used.'" Krandle v. Refuah
Health Ctr., Inc., No. 22-CV-4977, 2024 WL 1075359, *3 (S.D.N.Y. Mar. 12, 2024) (quoting
Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507, 517 (2d Cir. 2023)). "If the text 'is not entirely
clear, [courts] then turn to the broader statutory context and its history.'" Id. (quoting New York
Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207, 216 (2d Cir. 2021)). "If the text
remains ambiguous after that analysis, the Court turns 'to traditional canons of statutory
construction for guidance in resolving the ambiguity.'" Id. (quoting Williams v. MTA Bus Co., 44
F.4th 115, 127 (2d Cir. 2022)).
In Cuoco, the Second Circuit relied on the fact that a physician's alleged tortious conduct
occurred "in the course of rendering medical treatment" in his capacity as a physician in
determining that § 233(a) applied. Cuoco, 222 F.3d at 109. A court out of the Southern District
of New York has used the Oxford English Dictionary definition of "medical" as "'related to the . .

. practice of medicine,' i.e. the 'treatment or diagnosis' of a sick person . . . " in analyzing this
issue. Krandle, 2024 WL 1075359, at *4 (citing Medical, Medicine, Oxford English Dictionary
(3d Ed. 2001)). That court concluded that "the plain meaning of 'medical . . . or related functions'
appears to cover the performance of activities with an established relationship to the practice of
treating or diagnosing patients." Id. at *6. Additionally, immunity has been granted for
"performance of functions related to medical services." Rivera v. Federal Bureau of Prisons, 368
F. Supp. 3d 741, 745 (S.D.N.Y. 2019); see also Mele v. Hill Health Ctr., No. 3:06-CV-455, 2008
WL 160226, *3 (D. Conn. Jan. 8, 2008) (granting coverage for conduct that "concern[s] the
medical functions of providing treatment" under § 233(a)). Immunity has been extended, as well,
to duties that are "inextricably woven into [the] performance of medical functions." Teresa T.,

154 F. Supp. 2d at 300; see also Marshall v. Lamoille Health Partners, Inc., No. 2:22-CV-166,
2023 WL 2931823, *4 (D. Vt. Apr. 13, 2023) (noting how immunity can be applied to activity
that is interwoven with providing direct medical care such as hiring practices or adhering to
mandated reporting statutes).
Here, Plaintiff cites New York case law to support her argument that the conduct of a
healthcare provider, if performed without the patient's consent, may constitute battery; however,
that case law does not demonstrate that Defendant Biss' conduct was not a medical function under
the plain meaning of § 233(a). See Dkt. No. 107 at 18 (citing Messina v. Matarrasso, M.D.
F.A.C.S. P.C., 284 A.D.2d 32, 34-35 (1st Dep't 2001); VanBrocklen v. Erie Cnty. Med. Ctr., 96
A.D. 1394, 1394 (4th Dep't 2012); Young v. Sethi, 188 A.D.3d 1339, 1342 (3d Dep't 2020)). As
noted by the Government, Plaintiff concedes in her Amended Complaint that Defendant Biss was
at GFH as an HHHN employee and working as a Certified Nurse Midwife to provide medical
care when she interacted with Plaintiff. See Dkt. No. 93-1 at 8 (citing Dkt. No. 14 at ¶¶ 12, 24,

33, 37, 40). Additionally, Plaintiff notes in her Amended Complaint that when she went into
labor, she "immediately reached out to [HHHN] (an entity that works with GFH to provide
midwives during delivery at GFH)." Dkt. No. 14 at ¶ 24. Plaintiff fails to explain how Defendant
Biss' actions of suturing a vaginal tear following childbirth is not an activity with "an established
relationship to the practice of treating or diagnosing patients." Krandle, 2024 WL 1075359 at *6;
see also Cuoco, 222 F.3d at 107. The Court concludes that such conduct constitutes a medical
function pursuant to § 233(a). The Court, therefore, grants the Government's motion to substitute
under § 233(a).3

3 Plaintiff requests in the alternative, that the Court hold an evidentiary hearing on the scope of
employment issue. Generally, "'[t]he court may resolve the disputed jurisdictional fact issues by
referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an
evidentiary hearing.'" Fountain, 838 F.3d at 134 (quoting Zappia Middle E. Constr. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)). Additionally, the Supreme Court has
recognized the "possibility for overlap, mainly in cases alleging intentional torts, between the
validity of the scope-of-employment certification and the merits of a plaintiff's claim, as well as
the potential need for the district court to make credibility determinations[]" which may warrant
an evidentiary hearing. Tangorre v. Victim, No. 1:24-CV-388, 2024 WL 4979169, *6 (N.D.N.Y.
Dec. 4, 2024) (citing Osborn, 549 U.S. at 251-52). Here, Plaintiff has not presented any
credibility issues, and the Government does not dispute the material facts presented by Plaintiff.
T herefore, Plaintiff's request for an evidentiary hearing is denied.
E. Dismissal on Lack of Subject Matter Jurisdiction
"[A]lthough the . . . FTCA . . . provides a limited waiver of sovereign immunity from suit
for tort claims against the United States, it has strict exhaustion requirements and the burden is on
the plaintiff to both plead and prove compliance with the FTCA's statutory exhaustion
requirements." Mahmood v. United States, No. 1:20-CV-207, 2020 WL 1808206, *2 (N.D.N.Y.
Apr. 9, 2020) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)).
"Under the FTCA, before a claimant can file suit, he or she must first present the claim to the
appropriate federal agency (in this case HHS) within two years of the date the claim accrued."

Phillips v. Generation Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (citing 28 U.S.C. §
2401(b)). "The claimant can only initiate his or her lawsuit once the claim has been denied by the
agency (or if the agency has failed to make a decision within six months after the claim was
filed)." Id. (citing 28 U.S.C. § 2675(a)). "Final denial by the appropriate federal agency is a
jurisdictional prerequisite to adjudication under the FTCA." Roberge v. McAndrew, No. 1:15-
CV-1522, 2016 WL 3248400, *3 (N.D.N.Y. June 13, 2016) (citing 28 U.S.C. § 2675(a)); see also
Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983); Williams v. Metro. Det. Ctr., 418
F. Supp. 2d 96, 102 (E.D.N.Y. 2005).
Here, Plaintiff did not submit any claim to HHS. See Dkt. No. 93-4 at ¶ 4. She instead
argues that administrative remedies are not required because substitution is improper. See Dkt.

No. 107 at 18-19. However, this Court has already concluded that substitution is appropriate.
The Supreme Court has "definitively held that '[t]he FTCA bars claimants from bringing suit in
federal court until they have exhausted their administrative remedies." Roberge, 2016 WL
3248400 at *4 (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). Because Plaintiff has
not filed a claim with HHS within two years of when the claim accrued, she has failed to exhaust
her administrative remedies. See 28 U.S.C. § 2401(b). Based on the foregoing, the Government's
motion to dismiss for lack of subject matter jurisdiction is granted.
F. Motion for Joinder and Leave to Amend Answer
On April 30, 2025, GFH Defendants filed a motion for joinder and leave to amend their
answer, seeking to bring a third-party complaint against HHHN. See Dkt. No. 122. GFH
Defendants assert that HHHN is Defendant Biss and Bennett's employer; therefore, "[t]o the
extent that the GFH Defendants are found liable to Plaintiff, the GFH Defendants intend to seek
contribution and indemnity against HHHN, Defendant Biss, and Defendant Bennett for their

involvement in the same underlying set of facts and circumstances, and for their role in
supervising and providing Plaintiff with medical care." Id. at 5. Defendant Biss and Plaintiff
oppose the motion. See Dkt. Nos. 127, 128.
In their proposed amended answer, GFH Defendants acknowledge that, at the time of
Plaintiff's labor and delivery, Defendant Bennett was a student nurse midwife. See Dkt. No. 122-
4 at ¶ 13. As part of their cross claims, GFH Defendants contend that "[u]pon information and
belief, Plaintiff was aware that at all relevant times, Defendant Bennett was a student nurse
midwife acting under the authority of Defendant Biss." Id. at ¶ 176. They allege that "[t]he GFH
Defendants were acting under Defendant Biss' control and authority, and as such, liability falls
upon Defendant Biss." Id. at ¶ 190.

As a result of this Memorandum-Decision and Order, Defendant Biss is being dismissed
from the case. Therefore, within fourteen (14) days of the filing of this Memorandum-Decision
and Order, GFH Defendants shall file a letter with the Court, no more than two pages in length,
explaining whether their motion for joinder and leave to amend is mooted by this decision.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties’ submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Government's motion to substitute and to dismiss (Dkt. No. 93) is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall substitute the United States of America as the
Defendant for Lynette M. Biss; and the Court further
ORDERS that Plaintiff's claims for assault and battery against the United States are
DISMISSED without prejudice and the United States is DISMISSED from this action; and the
Court further
ORDERS that within fourteen (14) days of the filing of this Memorandum-Decision and
Order, GFH Defendants shall file a letter with the Court not to exceed two pages explaining how
this decision impacts their currently pending motion for joinder and leave to amend (Dkt. No.
122); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT ISSO ORDERED.
Dated: August 18, 2025 Jf er D
Albany, New York — a see Pe
U.S. District Judge

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11122641. Public record. Not legal advice.