Party Notice: K O an Infant by his parents and natural guardians GARNER OH and TAMARA PETROVIC v. Benjamin M. Lawsky in his Official capacity as Superintendent of the New York State Department of Financial Services and as Administrator of the NEW YORK STATE MEDICAL INDEMNITY FUND, Emily Prober as the duly authorized representative of AliCare, Third Party Administrator of the NEW YORK STATE MEDICAL INDEMNITY FUND

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                                (FILED: KINGS COUNTY CLERK 0172672015 12:39 PM INDEX NO. 500899/2015
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/13/2015

SUPREME COURT OF THE STATE OF NEW YORK.

COUNTY OF KINGS

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In the Matter of the Application of : Index No: 500899/2015

KAS OH, an Infant by his parents and Natural Guardians

GARNER OH and TAMARA PETROVIC, : AMENDED

Plaintiff-Petitioners : NOTICE OF PETITION

: PURSUANT TO CPLR

For a Judgment Under Article 78 of the CPLR : ARTICLE 78

-against-

BENJAMIN M. LAWSKY in his Official capacity as
Superintendent of the New York State Department of
Financial Services and as Administrator of the NEW
YORK STATE MEDICAL INDEMNITY FUND and
EMILY PROBER, as the duly authorized representative of
AliCare, Third Party Administrator of the NEW YORK.
STATE MEDICAL INDEMNITY FUND

Defendant-Respondent

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TO THE ABOVE NAMED RESPONDENTS:

PLEASE TAKE NOTICE that, upon the annexed Complaint and Petition, duly Verified
on the 21* day of January 2015, and the exhibits attached thereto, the undersigned shall move at
the Court house of the New York State Supreme Court, County of Kings located at 360 Adams
Street, Brooklyn, NY 11201 before an IAS judge to be assigned on the day of
March, 2015 or as soon thereafter as counsel can be heard for an Order of Judgment pursuant to
Article 78 of the Civil Practice Law and Rules:

a) Declaring that the determination of Emily Prober, duly authorized representative
of AliCare, Third Party Administrator designated by Benjamin Lawsky,
Superintendent of Financial Services as Third Party Administrator of the Medical
Indemnity Fund pursuant to Pub. Health L. §2999-i (2) and 10 NYCRR §69 —
10.1(p), denying the application of enrollment of KAS OH, a neurologically
injured infant determined to be eligible for enrollment into the NEW YORK.

STATE MEDICAL INDEMNITY FUND by Order of Hon. Marsha Steinhardt,
Supreme Court, Kings County dated October 15, 2014 in accordance with Newb)

¢)

a)

e)

8)

h)

York Public Health Law §2999-h(1) is invalid, unenforceable and constitutes an
ultra vires act without any statutory or regulatory authority and is in violation of
and contrary to the public policy underlying Chapter 59 of the Laws of 2011
amending Public Health Law Article 29-D Title 4 establishing the New York
State Medical Indemnity Fund as well as Article I section 6 of the Constitution of
the State of New York; the Fourteenth Amendment to the Constitution of the
United States and is in direct violation of the Separation of Powers doctrine.

Directing and compelling Respondents/Defendants to immediately rescind their
unlawful determination that KAS OH is ineligible for enrollment in the New
York State Medical Indemnity Fund, and Compelling Respondents to
immediately accept the Application of KAS OH for enrollment in the New York
State Medical Indemnity Fund in accordance with the lawful Order of Hon.
Marsha Steinhardt, Supreme Court, Kings County dated October 15, 2014 which
determined that KAS OH qualified for enrollment in accordance with Public
Health Law §2999-h(1).

Annulling the w/tra vires determination of Emily Prober dated November 20,
2014 that KAS OH did not qualify for enrollment in the Medical Indemnity Fund

Declaring that Respondent/Defendants have not constitutional authority to make
determinations concerning the eligibility for enrollment of KAS OH into the
Medical Indemnity Fund;

Declaring that the Respondents generally, and Emily Prober and/or AliCare
specifically, are without statutory or regulatory authority under Public Health
Law Article 29-D Title 4 or the Regulations promulgated pursuant to Public
Health L. §2999-j(15) to make independent determinations as to the eligibility of
KAS OH or any other judicially determined qualified plaintiff for enrollment in
the Medical Indemnity Fund

Declaring that Public Health Law Article 29-D, Title 4 and the Regulations
promulgated thereunder do not authorize the Respondents to determine sua
sponte that KAS OH, or any infant similarly situated, does not qualify for
enrollment into the New York State Medical Indemnity Fund once a
determination has been made by the Court in accordance with provisions of Pub.
Health L. §2999-h(1) and (4);

Declaring that once a determination has been made by a jury or court that an
infant is a qualified plaintiff by virtue of having sustained a birth related
neurological injury, under Public Health Law § 2999-h(4) the Superintendent or
his designee are without authority to overrule, supplant override or ignore such
determination;

Declaring that the Respondents’ determination that KAS OH is not eligible for
enrollment in the New York State Medical Indemnity Fund, which determinationwas made without any hearing or other enumerated procedure, violates the
petitioners rights to due process under Article I section 6 of the Constitution of
the State of New York and the Fourteenth Amendment to the Constitution of the
United States.

i) Declaring that the Respondents’ determination that KAS OH is not eligible for
enrollment in the New York State Medical Indemnity Fund violates the
separation of powers doctrine by substituting the judgment of a member of the
Executive Branch for the judgment of a member of the Judiciary.

Jj) Declaring that legislation authorizing that a legal determination be made bya
member of the Judiciary cannot authorize a member of the Executive branch of
government sua sponte to overrule or disregard such judicial determination
because to do so violates the Separation of Powers doctrine;

k) Declaring generally that the Respondents are not empowered or authorized to
review a determination of a member of the Judiciary and substitute their own
determination because to do so violates the Separation of Powers doctrine.

1) For such other and further relief as this court deems just and proper.

PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §7804 (c) an answer and

any supporting papers must be served on the undersigned no later than five (5) days before the

return date set forth above.

Dated: February 12, 2015

To:

New York, New York

Christine Nash, Of Counsel

Charles E. Kutner, Of Counsel

1500 Broadway 21" Floor

New York, NY 10036

(212) 486-4244

Attorneys For Petitioners KAS OH, An Infant by his
Parents and Natural Guardians GARNER OH And
TAMARA PETROVIC

Eric T, SchneidermanAttorney General, State of New York
Office of the Attorney General

120 Broadway 24" Floor

New York, New York 12224

Benjamin Lawsky

Superintendent, N.Y.S. Department of Financial Services
One State Street

New York, NY 10004-1511

Emily Prober

AliCare, Inc,

333 Westchester Ave
White Plains, NY 10604