Brown et al v. Markowitz et al, No. 1:2020cv01137 - Document 13 (N.D.N.Y 2020)

Court Description: DECISION AND ORDER that Defendant Morine's motion to substitute the United States of America for her and dismiss without prejudice Plaintiff's claims against it pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680, for lac k of subject-matter jurisdiction (Dkt. No. 5 ) is GRANTED. The Clerk of Court shall SUBSTITUTE the United States of America for Defendant Morine in the caption of this action. Plaintiff's claims against the United States of America are DISMI SSED without prejudice. The remaining state-law claims against the other Defendants in Plaintiff's Amended Complaint (Dkt. No. 1 , Attach. 2, at 3-18) are REMANDED to New York State Supreme Court, Warren County. Signed by Chief Judge Glenn T. Suddaby on 11/13/2020. (sal )

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Brown et al v. Markowitz et al Doc. 13 Case 1:20-cv-01137-GTS-DJS Document 13 Filed 11/13/20 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ SUSAN BROWN, Plaintiff, v. 1:20-CV-1137 (GTS/DJS) DAVID M. MARKOWITZ, M.D.; RICHARD DIMICK, M.D.; ADIRONDACKS RADIOLOGY ASSOCIATES, P.C.; GLENS FALLS HOSPITAL; and ERIN MORINE, D.O., Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: DeGRAFF FOY & KUNZ, LLP Counsel for Plaintiff 41 State Street Albany, NY 12207 GEORGE J. SZARY, ESQ. NAPIERSKI, VanDENBURGH, NAPIERSKI & O’CONNOR, L.L.P. JOHN D. VanDENBURGH, ESQ. DIANE LUFKIN SCHILLING, ESQ. Counsel for Defendants Markowitz, Dimick and Adirondacks Radiology Associates, P.C. 296 Washington Avenue Extension Albany, NY 12203 HON. ANTOINETTE T. BACON Acting United States Attorney for the N.D.N.Y. Counsel for Defendant Morine 445 Broadway, Room 218 James T. Foley Courthouse Albany, NY 12207-2924 CATHLEEN B. CLARK, ESQ. Assistant U.S. Attorney GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this medical malpractice action filed by Susan Brown Dockets.Justia.com Case 1:20-cv-01137-GTS-DJS Document 13 Filed 11/13/20 Page 2 of 3 (“Plaintiff”) against the five above-captioned individuals and entities, is the motion of Erin Morine (“Defendant Morine”) to substitute the United States of America for her and dismiss without prejudice Plaintiff’s claims against it pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680, for lack of subject-matter jurisdiction. (Dkt. No. 5.) Plaintiff has consented to the motion and has requested that her remaining state-law claims (against the other Defendants) be remanded to New York State Supreme Court, Warren County. (Dkt. No. 10.) Defendant Morine has joined in the request for remand. (Dkt. No. 12.) The other Defendants have filed no opposition to Defendant Morine’s motion, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully considering the matter, the Court finds that Defendant Morine’s unopposed motion to substitute and dismiss, and Plaintiff’s unopposed request for remand, are at the very least facially meritorious. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met to demonstrate entitlement to the relief requested therein, the non-moving party’s failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). ACCORDINGLY, it is ORDERED that Defendant Morine’s motion to substitute the United States of America for her and dismiss without prejudice Plaintiff's claims against it pursuant to the Federal Tort 2 Case 1:20-cv-01137-GTS-DJS Document 13 Filed 11/13/20 Page 3 of 3 Claims Act, 28 U.S.C. § 2671-2680, for lack of subject-matter jurisdiction (Dkt. No. 5) is GRANTED; and it is further ORDERED that the Clerk of Court shall SUBSTITUTE the United States of America for Defendant Morine in the caption of this action; and it is further ORDERED that Plaintiff’s claims against the United States of America are DISMISSED without prejudice; and it is further ORDERED that the remaining state-law claims against the other Defendants in Plaintiff’s Amended Complaint (Dkt. No. 1, Attach. 2, at 3-18) are REMANDED to New York State Supreme Court, Warren County. Dated: November 13, 2020 Syracuse, New York 3

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