Preview
FILED: LEWIS COUNTY CLERK 04/28/2023 02:55 PM INDEX NO. EFCA2022-000210
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF LEWIS
MARY ELLEN BURR, NOTICE OF ENTRY
Plaintiff,
INDEX NO: EFCA2022-000210
vs. JUDGE: RAMSEIER
KELLY BIRCHENOUGH, DO,
GERARD CRAWFORD, MD, STEPHANIE HUNZIKER,
LEWIS COUNTY GENERAL HOSPITAL, ABC
ENTITIES 1-5, and JOHN and/or JANE DOE(S),
Defendants.
Please take notice of an Order, of which the within is a copy, duly granted in the within entitled
action on April 18, 2023, and duly entered in the office of the Clerk of the County of Lewis, on April
19, 2023.
Dated: April 28, 2023
Sarah Murnane Kelly, Esq.
SUGARMAN LAW FIRM, LLP
Attorneys for Lewis County General Hospital, Kelly Birchenough,
DO, Gerard Crawford, MD, and Stephanie Hunziker
211 West Jefferson Street
Syracuse, New York 13202
Telephone: (315) 474-2943
TO: Michelle Rudderow, Esq.
RUDDEROW LAW, PLLC
Attorneys for Mary Ellen Burr
205 South Salina Street, Suite 403
Syracuse, New York 13202
Telephone: (315) 228-0711
Sugarman Law Firm, LLP • 211 West Jefferson Street • Syracuse, NY 13202-2680
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FILED: LEWIS COUNTY CLERK 04/28/2023
04/19/2023 02:55
09:37 PM
AM INDEX NO. EFCA2022-000210
NYSCEF DOC. NO. 36
35 RECEIVED NYSCEF: 04/28/2023
04/19/2023
At a term of Supreme Court held in and
for the County of Lewis, in the City of
Lowville, New York on the 16th day of
March 2023.
PRESENT: HONORABLE WILLIAM F. RAMSEIER
Supreme Court Justice
STATE OF NEW YORK
SUPREME COURT COUNTY OF LEWIS
MEMORANDUM
MARY ELLEN BURR, DECtSION
AND
Plaintiff,
ORDER
-vs- lndex No. EFCM022-0210
KELLY BIRCHENOUGH, DO, GERARD CRAWFORD,
MD, STEPHANIE HUNZIKER, LEWIS COUNTY
GENERAL HOSPITAL, ABC ENTITIES 1-5, and JOHN
and/or JANE DOE(S) 1-5,
Defendants.
Defendants Gerard CraMord, M.D., Stephanie Hunziker, and Lewis County
General Hospital ("Defendants") moved for dismissal on the grounds that Plaintiff failed
to serve a timely notice of claim and failed to comply with the requirements of the General
Municipal Law. Plaintiff opposes the motion.
The Court has considered all documents filed in the New York Courts Electronic
Filing system (NYSCEF).
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FILED: LEWIS COUNTY CLERK 04/28/2023
04/19/2023 02:55
09:37 PM
AM INDEX NO. EFCA2022-000210
NYSCEF DOC. NO. 36
35 RECEIVED NYSCEF: 04/28/2023
04/19/2023
Plaintiff commenced this action with the filing of a summons and complaint on
August 9, 2022 (NYSCEF Doc #1). ln short, Plaintiff is alleged to have suffered injuries
from a total abdominal hysterectomy, bilateral salpingectomy, and cystoscopy performed
on February 12, 2020 by the Defendants at Lewis County General Hospital ('LCGH).
Plaintiff alleges that all Defendants were employees of Lewis County General Hospital.
It is undisputed that LCGH is a municipal actor subject to the requirements of GML
$50. Plaintiff executed a Notice of Claim on August 11,2022. The Notice of Claim was
served on or about Augusl18,2022. An examination of Plaintiff was conducted pursuant
to General Municipal Law $50-h on November 21 , 2022. Although Plaintiffs summons
and complaint were filed on August 9,2022, the same was not served on Defendants
until approximately December 6-7,2022. Defendants rejected the same on the grounds
that Notice of Claim was untimely.
Defendants move for dismissal pursuant to CPLR 53211(a)(1),(7) on several
grounds including failure to timely file the summons complaint after the 30-day statutory
waiting period pursuant to GML $50-i.
On a motion to dismiss pursuant to $CPLR 3211(a)(7) for failure to state a cause
of action, the court must accept the facts alleged in the pleadings as true and determine
whether the facts as alleged fit within any cognizable legal theory. Rovello v. Orofino
Realty Co., lnc.,40 N.Y.2d 633 (1976). GML $50-i provides that no action shall be
prosecuted against a municipal actor unless (a) a notice of claim has been made served
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FILED: LEWIS COUNTY CLERK 04/28/2023
04/19/2023 02:55
09:37 PM
AM INDEX NO. EFCA2022-000210
NYSCEF DOC. NO. 36
35 RECEIVED NYSCEF: 04/28/2023
04/19/2023
upon the municipality in compliance with $50-e, and (b) that at least thirty days have
elapsed since the service of such notice.
Plaintiff s complaint alleges that "at all times relevant herein" Defendants Gerard
Crawford, M.D. and Stephanie Hunziker were employees, members, and/or on the
medical staff of Defendant LCGH. Further, Defendants submitted an Affidavit of Kerry
Herbine, Chief Operating Officer of Lewis County Health System, who reviewed the
employment records of Lewis County General Hospital and attested that Gerard
CraMord, M.D. and Stephanie Hunziker were each employees of Lewis County General
Hospital.
The Court finds that Plaintiffs complaint as applicable to the municipal Defendants
is subject to the requirements of GML $50 et seq., specifically, GML S50-i. Where the
aforementioned sections apply, compliance with said sections are a condition precedent
to a lawsuit against a municipal actor. "Plaintiff must not only plead in his complaint that
he has served a notice of claim, but must also allege that the notice was served at least
30 days prior to commencement of the action and that in that time defendants neglected
to or refused to adjust or to satisfy the claim." Davidson v. Bronx Mun. Hosp.,64 N.Y.2d
59,62 (1984). "Failure to comply with provisions requiring notice and presentment of
claims prior to the commencement of litigation ordinarily requires dismissal." /d.
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FILED: LEWIS COUNTY CLERK 04/28/2023
04/19/2023 02:55
09:37 PM
AM INDEX NO. EFCA2022-000210
NYSCEF DOC. NO. 36
35 RECEIVED NYSCEF: 04/28/2023
04/19/2023
Based on Plaintiff s failure to comply with GML S50 el seq., the Court fails to reach
the parties additional arguments, including whether the continuous treatment doctrine
applies.
It is therefore
ORDERED that Defendants motion for to dismiss as to the municipal Defendants
is granted.
aprtt i*zozt
Lovwille, New York
ENTER
/-t WILL F. RAMSEIER
Sup e Court Justice
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Preview
FILED: LEWIS COUNTY CLERK 04/28/2023 02:55 PM INDEX NO. EFCA2022-000210 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF LEWIS MARY ELLEN BURR, NOTICE OF ENTRY Plaintiff, INDEX NO: EFCA2022-000210 vs. JUDGE: RAMSEIER KELLY BIRCHENOUGH, DO, GERARD CRAWFORD, MD, STEPHANIE HUNZIKER, LEWIS COUNTY GENERAL HOSPITAL, ABC ENTITIES 1-5, and JOHN and/or JANE DOE(S), Defendants. Please take notice of an Order, of which the within is a copy, duly granted in the within entitled action on April 18, 2023, and duly entered in the office of the Clerk of the County of Lewis, on April 19, 2023. Dated: April 28, 2023 Sarah Murnane Kelly, Esq. SUGARMAN LAW FIRM, LLP Attorneys for Lewis County General Hospital, Kelly Birchenough, DO, Gerard Crawford, MD, and Stephanie Hunziker 211 West Jefferson Street Syracuse, New York 13202 Telephone: (315) 474-2943 TO: Michelle Rudderow, Esq. RUDDEROW LAW, PLLC Attorneys for Mary Ellen Burr 205 South Salina Street, Suite 403 Syracuse, New York 13202 Telephone: (315) 228-0711 Sugarman Law Firm, LLP • 211 West Jefferson Street • Syracuse, NY 13202-2680 1 of 5 FILED: LEWIS COUNTY CLERK 04/28/2023 04/19/2023 02:55 09:37 PM AM INDEX NO. EFCA2022-000210 NYSCEF DOC. NO. 36 35 RECEIVED NYSCEF: 04/28/2023 04/19/2023 At a term of Supreme Court held in and for the County of Lewis, in the City of Lowville, New York on the 16th day of March 2023. PRESENT: HONORABLE WILLIAM F. RAMSEIER Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF LEWIS MEMORANDUM MARY ELLEN BURR, DECtSION AND Plaintiff, ORDER -vs- lndex No. EFCM022-0210 KELLY BIRCHENOUGH, DO, GERARD CRAWFORD, MD, STEPHANIE HUNZIKER, LEWIS COUNTY GENERAL HOSPITAL, ABC ENTITIES 1-5, and JOHN and/or JANE DOE(S) 1-5, Defendants. Defendants Gerard CraMord, M.D., Stephanie Hunziker, and Lewis County General Hospital ("Defendants") moved for dismissal on the grounds that Plaintiff failed to serve a timely notice of claim and failed to comply with the requirements of the General Municipal Law. Plaintiff opposes the motion. The Court has considered all documents filed in the New York Courts Electronic Filing system (NYSCEF). 1 1 of 5 2 4 FILED: LEWIS COUNTY CLERK 04/28/2023 04/19/2023 02:55 09:37 PM AM INDEX NO. EFCA2022-000210 NYSCEF DOC. NO. 36 35 RECEIVED NYSCEF: 04/28/2023 04/19/2023 Plaintiff commenced this action with the filing of a summons and complaint on August 9, 2022 (NYSCEF Doc #1). ln short, Plaintiff is alleged to have suffered injuries from a total abdominal hysterectomy, bilateral salpingectomy, and cystoscopy performed on February 12, 2020 by the Defendants at Lewis County General Hospital ('LCGH). Plaintiff alleges that all Defendants were employees of Lewis County General Hospital. It is undisputed that LCGH is a municipal actor subject to the requirements of GML $50. Plaintiff executed a Notice of Claim on August 11,2022. The Notice of Claim was served on or about Augusl18,2022. An examination of Plaintiff was conducted pursuant to General Municipal Law $50-h on November 21 , 2022. Although Plaintiffs summons and complaint were filed on August 9,2022, the same was not served on Defendants until approximately December 6-7,2022. Defendants rejected the same on the grounds that Notice of Claim was untimely. Defendants move for dismissal pursuant to CPLR 53211(a)(1),(7) on several grounds including failure to timely file the summons complaint after the 30-day statutory waiting period pursuant to GML $50-i. On a motion to dismiss pursuant to $CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleadings as true and determine whether the facts as alleged fit within any cognizable legal theory. Rovello v. Orofino Realty Co., lnc.,40 N.Y.2d 633 (1976). GML $50-i provides that no action shall be prosecuted against a municipal actor unless (a) a notice of claim has been made served 2 2 of 5 3 4 FILED: LEWIS COUNTY CLERK 04/28/2023 04/19/2023 02:55 09:37 PM AM INDEX NO. EFCA2022-000210 NYSCEF DOC. NO. 36 35 RECEIVED NYSCEF: 04/28/2023 04/19/2023 upon the municipality in compliance with $50-e, and (b) that at least thirty days have elapsed since the service of such notice. Plaintiff s complaint alleges that "at all times relevant herein" Defendants Gerard Crawford, M.D. and Stephanie Hunziker were employees, members, and/or on the medical staff of Defendant LCGH. Further, Defendants submitted an Affidavit of Kerry Herbine, Chief Operating Officer of Lewis County Health System, who reviewed the employment records of Lewis County General Hospital and attested that Gerard CraMord, M.D. and Stephanie Hunziker were each employees of Lewis County General Hospital. The Court finds that Plaintiffs complaint as applicable to the municipal Defendants is subject to the requirements of GML $50 et seq., specifically, GML S50-i. Where the aforementioned sections apply, compliance with said sections are a condition precedent to a lawsuit against a municipal actor. "Plaintiff must not only plead in his complaint that he has served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that in that time defendants neglected to or refused to adjust or to satisfy the claim." Davidson v. Bronx Mun. Hosp.,64 N.Y.2d 59,62 (1984). "Failure to comply with provisions requiring notice and presentment of claims prior to the commencement of litigation ordinarily requires dismissal." /d. 3 3 of 5 4 4 FILED: LEWIS COUNTY CLERK 04/28/2023 04/19/2023 02:55 09:37 PM AM INDEX NO. EFCA2022-000210 NYSCEF DOC. NO. 36 35 RECEIVED NYSCEF: 04/28/2023 04/19/2023 Based on Plaintiff s failure to comply with GML S50 el seq., the Court fails to reach the parties additional arguments, including whether the continuous treatment doctrine applies. It is therefore ORDERED that Defendants motion for to dismiss as to the municipal Defendants is granted. aprtt i*zozt Lovwille, New York ENTER /-t WILL F. RAMSEIER Sup e Court Justice 4 4 of 5 5 4