Gubenko v City of New York

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Gubenko v City of New York 2022 NY Slip Op 33451(U) October 6, 2022 Supreme Court, Kings County Docket Number: Index No. 512581/2020 Judge: Bernard J. Graham 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. INDEX NO. 512581/2020 FILED: KINGS COUNTY CLERK 10/11/2022 10:55 AM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 10/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SVETLANA GUBENKO, As Administratrix of the Estate ofGENNADIY RAKHLIN, and SVETLANA GUBENKO, Individually, Index No.: 512581/2020 Plaintiff, DECISION/ORDER -againstTHE CITY OF NEW YORK, NYC HEALTH+ HOSPITALS, THE FIRE DEPARTMENT OF NEW YORK CITY and THE NEW YORK COMMUNITY HOSPITAL OF BROOKLYN, INC., d/b/a NEW YORK COMMUNITY HOSPITAL, Hon. Bernard J. Graham Supreme Court Justice Defendants Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: dismiss plaintiffs fifth cause of action sounding in negligent hiring and supervision for failure to state a cause of action, pursuant to CPLR § 3211 (a){7). Papers Notice of Motion and Affidavits Annexed ...................... . Order to Show cause and Affidavits Annexed ........... .. Answering Affidavits ................................................ .. Replying Affidavits ..................................................... . Exhibits ....................................................................... . Other: ....... (memo) ............................................................. . Numbered 1-2 3 4 5 Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Defendant, New York Community Hospital, has moved (seq. 3) for an Order, pursuant to CPLR §32 I l(a)(7), to dismiss plaintiffs fifth cause of action sounding in negligent hiring and supervision, upon the grounds that plaintiff seeks recovery under two conflicting theories oflaw. Defendant contends that a claim for negligent hiring cannot be maintained when a malpractice claim has been brought against an employer under the doctrine of respoqdeat superior. 1 [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 10/11/2022 10:55 AM NYSCEF DOC. NO. 60 INDEX NO. 512581/2020 RECEIVED NYSCEF: 10/11/2022 Counsel for plaintiff has opposed the relief sought in this motion upon the grounds that this motion is premature, as additional discovery regarding New York Community Hospital's employees is necessary to determine whether New York Community Hospital would be liable for their alleged malpractice under the doctrine of respondeat superior. In addition, plaintiff maintains that the claim for negligent hiring can be sustained because plaintiff alleged recklessness in their complaint. Background: On or about July 14, 2020, an action was commenced on behalf of the decedent by the filing of a summons and complaint with the Clerk's office of Kings County. Issue was joined on or about July 31, 2020. On or about September 30, 2020, counsel for the plaintiff provided a Verified Bill of Particulars in response to defendant's Demand. Argument of this motion was heard on June 2, 2022 before the undersigned. Facts: This case, sounding in medical malpractice, involves allegations of negligence against defendant New York Community Hospital for the period of time between decedent's presentation to the Emergency Department on November 21, 2019 and her death on November 22, 2019. During this time period, it is alleged by plaintiff that New York Community Hospital failed to appropriately treat the decedent's respiratory issues and transfer the decedent from New York Community Hospital to another hospital where the proper care and treatment may have been rendered. Contentions: This Court is presented with the issue of whether the negligent hiring cause of action alleged by plaintiff against defendant New York Community Hospital should be dismissed as a matter of law. In support of the motion to dismiss on behalf of New York Community Hospital, counsel argues that the plaintiffs cause of action for negligent hiring should be dismissed 2 [* 2] 2 of 4 INDEX NO. 512581/2020 FILED: KINGS COUNTY CLERK 10/11/2022 10:55 AM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 10/11/2022 because New York Community Hospital would be liable for the alleged negligence of their employees under the doctrine of respondeat superior, as the employees were acting within the scope of their employment in their treatment of the decedent. Plaintiff, by their attorneys, opposes the relief sought in the motion, arguing that defendant's motion to dismiss the cause of action for negligent hiring is premature, as the defendant failed to identify the employees and specify the acts/omissions that were perfonned within the scope of their employment. In addition~ plaintiff argues that their claim of recklessness I precludes the dismissal of the negligent hiring claim, since a finding of recklessness, which is an element of gross negligence, would entitle plaintiff to a-n award of punitive damages and allow recovery under both theories. Discussion: "Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training." Henry v Sunrise Manor Ctr. for Nursing and Rehabilitation, 147 AD3d 739, 741-42, 46 NYS3d 649 [2d Dept 2017]. This Court finds that the defendant New York Community Hospital has established that the cause of action for negligent hiring must be dismissed, as New York Community Hospital would liable for the alleged actions and/or omissions of their employees under the doctrine of respondeat superior. Moreover, plaintiff did not specifically plead a claim of gross negligence in their complain't2 and has not offered any evidence that New York Community Hospital intentionally, willfully, or recklessly disregarded the decedent's rights as a patient through conduct "showing heedlessness and an utter disregard for the rights and safety of others." Gruber v Craig, 208 AD2d 900; Rey v Park View Nursing Home, Inc., 262 AD2d 624, 627; Mortin v Brookhaven, 32 1 2 See Plaintifrs complaint, NYSEF Doc #1, para. 56. See Plaintiffs complaint, NYSEF Doc #1, para. 56. 3 [* 3] 3 of 4 FILED: KINGS COUNTY CLERK 10/11/2022 10:55 AM NYSCEF DOC. NO. 60 INDEX NO. 512581/2020 RECEIVED NYSCEF: 10/11/2022 AD3d 381. While plaintiffs complaint does include the word "reckless" (paragraph 56) 3 , simply stating "reckless" is not sufficient to assert a claim of gross negligence. Although "an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer 'based on alleged gross negligence in the hiring or retention of the employee' ... here, that exception is inapplicable because the claimants did not seek punitive damages based upon an allegation that the defendant was grossly negligent in the hiring of its employees." Deker v State, 164 AD3d 50, 653-54, 83 NYS3d 533 [2d Dept 2018]. As the punitive damages exception does not apply, and if New York Community Hospital were liable for their employee's alleged medical malpractice it would be under the theory of respondeat superior, the plaintiffs claim for negligent hiring cannot be sustained. Conclusion: Accordingly, defendant's motion is granted and plaintiffs claim for negligent hiring, supervision or training as against New York Community Hospital is dismissed. Dated: October b , 2022 :1ti .G~a~~~ Brooklyn, NY Supreme Court, Kings County 3 Paragraph 56 discusses specific allegations of medical malpractice as against the defendant New York Community Hospital:" ... and in otherwise being careless, reckless and negligent in his care and treatment ... " 4 [* 4] 4 of 4

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