Yarwood v County of Suffolk

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Yarwood v County of Suffolk 2018 NY Slip Op 34424(U) September 19, 2018 Supreme Court, Suffolk County Docket Number: Index No. 611326/2015 Judge: Paul J. Baisley, Jr. Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: SUFFOLK COUNTY CLERK 09/19/2018 04:18 PM NYSCEF DOC. NO. 194 INDEX NO. 611326/2015 RECEIVED NYSCEF: 09/19/2018 Short Form Order SUPREME COURT- STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR. , J.S.C. --------------------------------------------------------------X LINDA YARWOOD, Individually, as Administrator of the Estate of Scott John Yarwood, deceased, Plaintiff, - againstTHE COUNTY OF SUFFOLK, VINCENT F. DEMARCO, Sheriff, in his individual and official capacity, JOSEPH T. CARA CAPP A, Undersheriff, in his individual and official capacity, JOHN P. MEYERRICKS , Undersheriff, in his individual and official capacity, CHARLES EWALD, Warden, in his individual and official capacity, and their agents, servants and employees, THE SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, JAMES L. TOMARKEN, Commissioner, in his individual and official capacity, MEDICAL STAFFING NETWORK HEALTHCARE, LLC, CROSS COUNTRY STAFFING, INC., NURSE FLOYD GLUBIAK, in their individual and official capacity, THE EXECU/SEARCH GROUP, INC., NURSE NADINE TEICH, in their individual and official capacity, Suffolk County Police Department SGT. JOSEPH ZURL, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF VUL TAGGIO, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF LIERE, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF BROWN, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF BIVONA, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF KEVIN LOMBARDI, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF JAMES WYNNE, in their individual and official capacity, CORRECTIONS OFFICER [* 1] 1 of 4 Index No.: 611326/2015 MOTION DATE: 5/10/18 MOTION SEQ. NO.: 006 - MotD 007 - MotD PLAINTIFFS' ATTORNEYS: Law Offices of Laurence Jeffrey Weingard 250 West 57th Street, Suite 401 New York, NY 10107 DEFENDANTS' ATTORNEYS: Dennis M. Brown, Esq. Suffolk County Attorney Attorney for County of Suffolk, Vincent F. Demarco, John P. Meyerricks, Charles Ewald, Suffolk County Dept. of Health Services, James L. Tomarken, Joseph Zurl (Police), CO Vultaggio, CO Liere, CO Brown, CO Bivona, CO Kevin Lombardi , CO James Wynne, CO John Gilliam, CO Jameson Bretz, CO Dominick Verni , Sgt. Christopher Dean, Sgt. John Urbancik, Sgt. Daniel Rung, CO Shawn Springsteen, CO Mike Newman, Nurse Dayna Miller & Nurse Helen Balchuk H. Lee Dennison Building 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, New York 11788-0099 King & Spalding, LLP Attorneys for Medical Staffing Network Healthcare, LLC 1185 A venue of the Americas New York, New York 10036 Fumuso, Kelly, Swart, Farrell, Polin & Christesen, LLP Attorney for Cross Country Staffing, Inc. and Nurse Floyd Glubiak 110 Marcus Boulevard Hauppauge, New York 11788 FILED: SUFFOLK COUNTY CLERK 09/19/2018 04:18 PM NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 09/19/2018 AND/OR DEPUTY SHERIFF JOHN GILLIAM, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF JAMESON BRETZ, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF DOMINICK VERNI, in their official capacity, CORRECTIONS OFFICER SERGEANT AND/OR DEPUTY SHERIFF CHRISTOPHER DEAN, in their individual and official capacity, CORRECTIONS OFFICER SERGEANT AND/OR DEPUTY SHERIFF JOHN URBANCIK, in their individual and official capacity, CORRECTIONS OFFICER SERGEANT AND/OR DEPUTY SHERIFF DANIEL RUNG, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF SHAWN SPRINGSTEEN, in their individual and official capacity, CORRECTIONS OFFICER AND/OR DEPUTY SHERIFF MIKE NEWMAN, in their individual and official capacity, NURSE DAYNA MILLER, in their individual and official capacity, NURSE HELEN BALCHUK, in their individual and official capacity, and their agents, servants and employees, EDWARD WEBBER, Commissioner, Suffolk County Police Department, in his individual and official capacity, JAMES C. BURKE, Chief of Department, Suffolk County Police Department, in his individual and official capacity, P.O. WALTER HETZEL, in his individual and official capacity, SGT. THOMAS P AOCELLI, in his individual and official capacity, P.O. STACEY CUNNEN, in his individual and official capacity, SGT. RYAN SEFTON, in his individual and official capacity, P.O. JOSEPH SCARIOLO, in his individual and official capacity, P.O. JOSHUA PARSONS , in his individual and official capacity, SGT. JOHN OAKLEY, in his individual and official capacity, P.O. DIEGO CAMPOLI, in his individual and official capacity, P.O. JOE GUIDO, in his individual and official capacity, SGT. MADELINE C. CUNNINGHAM, in his individual and official capacity, and their agents, servants and employees, and JOHN and/or JANE DOES 1-10, in their individual and official capacities, Defendants. ---------------------------------------------------------------X 2 [* 2] INDEX NO. 611326/2015 2 of 4 Voute, Lohrfink, Magro & McAndrew, LLP Attorneys for Execu/Search Group, Inc. 170 Hamilton A venue White Plains, New York 10601 Tromello, McDonnell & Kehoe, Esqs. Attorneys for Teich 3 Huntington Quadrangle P. 0 . Box 9038 Melville, New York 11747 FILED: SUFFOLK COUNTY CLERK 09/19/2018 04:18 PM NYSCEF DOC. NO. 194 INDEX NO. 611326/2015 RECEIVED NYSCEF: 09/19/2018 Yarwood, etc. v County of Suffolk Index No. 61/326/20/5 Upon the following papers numbered I to _Jl_ read on this motion and cross motion for summary judgment Notice of Motion and supporting papers ...!.:L Notice of Cross-Motion and supporting papers 9-17 Affirmation/affidavit in opposition and supporting papers 18-28 Affirmation/affidavit in reply and supporting papers 29-30: 31-32 Other_; (a11d aftc1 I.cm i11g cotmscl i11 s1:1ppo1t ofand opposed to the 111otio11) it is, ORDERED that the motion (motion sequence no. 006) of defendant Nadine Teich and the purported cross motion (motion sequence no. 007) of defendant Execu/Search Group, Inc., both for summary judgment, are granted under the circumstances presented herein; and it is further ORDERED that so much of defendant Teich' s motion as seeks an award of attorney' s fees is denied pursuant to CPLR §8303-a. The matter at bar is one for wrongful death, gross negligence, negligence, and civil rights violations pursuant to 42 USC § 1983. Plaintiffs decedent, John Yarwood, was arrested by the Suffolk County Police Department on November 28, 2014 and was incarcerated in the Suffolk County Correctional Facility located in Riverhead, New York. On November 29, 2014 he hung himself in his cell and subsequently died on December 3, 2014. Defendant Execu/Search Group, Inc. ("Execu/Search") had contracted with defendant County of Suffolk to provide temporary medical personnel for the County's correctional facility located in Riverhead. Defendant Nadine Teich ("Teich"), a nurse employed by Execu/Search, was assigned to work at the facility. In support of her motion she has proffered her own affidavit wherein she states that on November 29, 2014, whi le working at another location at the facility, she responded to a call for medical assistance in the lock-up. When she arrived at the decedent's cell together with other personnel, correction officers had already responded, had lifted the decedent up to relieve the pressure on his neck and had cut away the laundry bag that he had used to hang himself. Cardiopulmonary resuscitation ("CPR") had already begun to be administered and when medical personnel, including Teich, arrived, successful efforts were made to restore the decedent's respirations and heart rate and maintain them until Emergency Medical Services arrived. The Flanders Northampton Ambulance Corps arrived at 12:29, six minutes after Teich had responded with others, and the decedent was taken to Stony Brook Hospital where he died on December 3, 2014. The plaintiff by way of her complaint has alleged that defendant Teich, together with the other defendants, improperly screened the decedent, ignoring his medical record of prior mental health problems prior to his incarceration; that defendants delayed in discovering the decedent hanging in his cell; that defendants ' actions constituted gross negligence; and that defendants each violated the decedent's civil rights pursuant to 42 US Code § 1983. The sole basis of liability alleged against defendant Execu/Search is that it is vicariously liable under the doctrine of respondeat superior by placing defendant Teich at the corrections facility. A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York University Medical Center, 64 N.Y. 2d 851,853,487 .Y.S.2d 316 [1985]); Zuckerman v. City of New York, 49 N.Y. 2d 557, 562 [1980]). Summary judgment 3 [* 3] 3 of 4 FILED: SUFFOLK COUNTY CLERK 09/19/2018 04:18 PM NYSCEF DOC. NO. 194 INDEX NO. 611326/2015 RECEIVED NYSCEF: 09/19/2018 Index No. 611326/2015 Yarwood, etc. v County ofSuffolk is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank ofAlbany v. McAuliffe, 97 A.D.2d 607,467 N.Y.S.2d 944 [ 3rd Dept. 1983]), but once aprimafacie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N .Y.S.2d 923 [1986]). In opposition to the instant motion and cross motion, plaintiff has proffered only her attorney's affirmation, wherein counsel argues that the motion should be denied as being premature because little or no discovery has been provided. No other evidence has been submitted by the plaintiff to raise a triable issue of fact to rebut defendant Teich's affidavit and prima facie showing. It is well settled that a self-serving claim that discovery would lead to relevant evidence, by itself, is insufficient to withstand a motion for summary judgment (Jeffries v. New York City Housing Authority, 8 A.D.3d 178, 780 N.Y.S.2d l [1st Dept 2004]). Accordingly, defendant Teich's motion for summary judgment is granted. As to defendant Exec/Search's cross motion, upon dismissal of the action against defendant Teich, plaintiffs claim pursuant to respondeat superior must also be dismissed (Pistilli Construction & Development Corporation v. Epstein, Rayhill & Frankini, 84 A.D.3d 913, 921 N.Y.S.2d 887 [2 nd Dept 2011]). Accordingly, the cross motion of defendant Exec/Search for summary judgment is also granted. As to that branch of defendant Teich's motion for an order granting her attorney's fees pursuant to CPLR §8303-a, there has not been a sufficient showing of frivolous conduct or bad faith on the part of the plaintiff to warrant such relief (see, i.e., Broich v. Nabisco, Inc., 2 A.D.3d 474, 768 N.Y.S.2d 489 [2 nd Dept 2003]) and the motion is accordingly denied. This shall constitute the decision and order of the court. Dated: September 19, 2018 HON. PAUL J. BAISLEY, JR. 4 [* 4] 4 of 4

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