| Upsher v Ramineni |
| 2011 NY Slip Op 04378 [84 AD3d 653] |
| May 26, 2011 |
| Appellate Division, First Department |
| Steven Upsher, Respondent, v Subbaro V. Ramineni, M.D.,et al., Appellants. |
—[*1] Toberoff, Tessler & Schochet, LLP, New York (Brian Schochet of counsel), forrespondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered July 13, 2010, which,insofar as appealed from as limited by the briefs, denied defendants' motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (2), unanimously reversed, on the law, without costs, andthe motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing thecomplaint.
Dismissal of the complaint is warranted in this action where plaintiff alleges that whileincarcerated, he received negligent medical care from defendants doctors and nurses, who wereall employees of the Department of Correction. "Correction Law § 24 provides that anaction against a Department of Correctional Services employee for 'any act done or the failure toperform any act within the scope of the employment' (Correction Law § 24 [1]) must becommenced in the Court of Claims as a claim against the state (see Correction Law§ 24 [2])" (Koehl v Mirza, 39AD3d 1092, 1092-1093 [2007], mod on other grounds 13 NY3d 897 [2009]; seeDe Paolo v State of New York, 99 AD2d 762, 763 [1984]; Ruffin v Deperio, 97 FSupp 2d 346, 355-356 [2000]). There exists no basis to deviate from the plain language ofsection 24 (see generally Matter ofPolan v State of N.Y. Ins. Dept., 3 NY3d 54, 58 [2004]), which immunizes "any officeror employee" from individual liability for acts or omissions taken "within the scope of theemployment."
Furthermore, defendants correctly contend that the United State Supreme Court's decision inHaywood v Drown (556 US —, 129 S Ct 2108 [2009]) has no bearing on thismatter, as it does not involve a claim brought under 42 USC § 1983.Concur—Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels and RomÁn, JJ.