Darlene W. v. Montefiore Med. Ctr.

Darlene W. v Montefiore Med. Ctr. (2020 NY Slip Op 01305)

Darlene W. v Montefiore Med. Ctr.

2020 NY Slip Op 01305

Decided on February 25, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 25, 2020
Renwick, J.P., Mazzarelli, Moulton, González, JJ.

213

[*1] Darlene W., as Parent and Natural Guardian of A.D.W an Infant, Plaintiff-Appellant,

v

Montefiore Medical Center, Defendant-Respondent.

The Fitzgerald Law Firm PC, Yonkers (Mitchell Gittin of counsel), for appellant.

Mauro Lilling Naparty LLP, Woodbury (Katherine Herr Solomon of counsel), for respondent.

Judgment, Supreme Court, Bronx County, entered December 27, 2018 (Lewis J. Lubell, J.), dismissing the complaint, unanimously affirmed, without costs.

This is the second medical malpractice action plaintiff brings in state court alleging that defendant's employees rendered negligent medical care and services to herself and the infant during labor and delivery, causing them to sustain severe and serious personal injuries. Plaintiff does not dispute that the prior action was properly removed to federal court (see 28 USC § 1446[d]). After the removal to federal court, the parties entered into a stipulation, which was so-ordered by the U.S. District Court for the Southern District of New York, that the prior action would be discontinued without prejudice and that any subsequent medical malpractice claims against defendants, including Montefiore, would be brought in federal court (see Williams v Belova, 121 AD3d 572 [1st Dept 2014]). Although this action encompasses claims against other entities and for a later time period, there is an overlapping period of time. Thus, it is for the federal court to determine whether plaintiff's claims allege violations of the Federal Tort Claims Act or whether the matter should be remanded to state court (see Clayton v American Fedn. of Musicians, 243 AD2d 347 [1st Dept 1997]).

M-213 - White v Montefiore Medical Center

Motion to strike a portion of reply

brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 25, 2020

CLERK