New York State Court of Claims

New York State Court of Claims

DUVERGER v. THE STATE OF NEW YORK, #2007-036-242, Claim No. 113810, Motion No. M-73744


Case Information

ROBERGEAU DUVERGER, as Administrator of the Estate of MIREILLE DUVERGER, Deceased, and ROBERGEAU DUVERGER, Individually, and as Judgment Creditors of Guy Etienne, M.D.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
By: Mary Y.J. Kim, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant makes a pre-answer motion to dismiss this claim[1] brought against it for contractual and statutory defense and indemnification.[2] On May 10, 2000, Mrs. Mireille Duverger gave birth to her third child at State University of New York Downstate Hospital (“Downstate”). She was attended by Dr. Guy Etienne, an obstetrician, who had delivered her other children. After Mrs. Duverger was discharged from Downstate, and eighteen days after she gave birth, she was taken from her home to Brookdale Medical Center’s emergency room by ambulance because she was suffering from severe pain. There she had a seizure and died shortly after midnight. Mrs. Duverger’s husband, Robergeau Duverger, believed that his wife died because the care she received from Dr. Etienne and others at Downstate was negligent and constituted medical malpractice.

In May 2002, Mr. Duverger commenced two medical malpractice/wrongful death actions, one in Supreme Court, Kings County (Index No. 017672/02) against Dr. Etienne individually (“the Supreme Court action”), and the other in this court (Claim No. 106062) against the State for the care decedent received at Downstate, including the care of Dr. Etienne. In May 2005, Dr. Etienne defaulted in the Supreme Court action. A default judgment was entered against him, on motion, and the court there ordered that the matter be set down for inquest.

In 2006, this court conducted a trial on Claim No. 106062 against the State, and on February 8, 2007, the court found Downstate had not departed from the standard of good and accepted medical or nursing care in dealing with Mrs. Duverger. Shortly after this decision, Mr. Duverger pursued his entitlement to an inquest in the Supreme Court action based upon Dr. Etienne’s default there and obtained an award of $3 million against the doctor on March 22, 2007. The judgment remains unpaid.

On June 7, 2007, claimant filed this claim against the State alleging that, as a judgment creditor of Dr. Etienne, he may enforce the statutory and contractual rights the doctor has for defense and indemnification of the $3 million inquest order in the Supreme Court action. The claim asserts the State had the duty to defend and indemnify Dr. Etienne in the Supreme Court action based on: Dr. Etienne’s clinical academic appointment at Downstate; Public Officers Law § 17, which statutorily provides for the State to defend and indemnify its employees; affiliation agreements between Downstate and Kings County Hospital (where Dr. Etienne was on staff), which allegedly provide for defense and indemnification; and, clinical practice management plan agreements between Downstate and University Physicians of Brooklyn, Inc. The claim does not attach any of the agreements, nor does it reference or quote specific provisions of them.

Defendant argues that neither the Public Officers Law nor any agreements give claimant standing to sue. Defendant attaches to its motion papers an Affiliation Agreement between Downstate and Kings County Hospital Center (“the Affiliation Agreement”) and a Memorandum of Understanding between Downstate and University Physicians of Brooklyn, Inc. (“UPB”) (the “Practice Management Plan MOU”), both having been produced by defendant at this court’s medical malpractice trial. Defendant contends that neither document extends employment to Dr. Etienne by the State or Downstate, nor does either contain or allude to any benefit to a third party with a cause of action against any of the parties to the contract.

Public Officers Law § 17 addresses “Defense and indemnification of state officers and employees,” and provides in para. 5 that “[t]he benefits of this section shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party . . .” Claimant maintains he is entitled to enforce Dr. Etienne’s rights to defense and indemnification, relying on Frontier Ins. Co. v State of New York, 172 AD2d 13 [3d Dept 1991] (“Frontier 1991”). There, a physician’s medical malpractice carrier successfully sued the State under Public Officers Law § 17 for reimbursement of its defense costs only in a medical malpractice action.

The physician defended in Frontier 1991 was employed as an assistant professor in the department of gynecology-obstetrics at the School of Medicine of the State University of New York at Buffalo who participated in the surgery at issue in order to teach two resident doctors. It was stipulated by the parties that she was fulfilling her teaching responsibilities at the time.[3] The trial court held, and the appellate court affirmed, that because the physician was an employee of the State and thus entitled to benefit from Public Officers Law § 17, her malpractice insurer could sue for the statutory benefit as her subrogee. Significantly, Public Officers Law § 17, para. 7 expressly contemplates the customary subrogation right that an insurer has with its insured: “The provisions of this section shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.” As such, in Frontier 1991, the physician’s insurer, which already had settled and paid the medical malpractice claim, was able to avail itself of this statutory carve out for its subrogation rights as an insurer to the extent of recovering its legal fees and costs. Under the facts of the case, the State did not contribute to the settlement itself, and the patient received no payment directly or indirectly from the State. That is not the situation here, where the ultimate party entitled to a recovery seeks payment directly from the State on behalf of the physician against whom he obtained judgment, arguing that the State also has a statutory duty to him.

In furtherance of claimant’s argument, he states that as a judgment creditor of Dr. Etienne, he has a valid, perfected lien against the rights of the doctor and may levy upon those rights. He argues he may assert whatever contractual and statutory rights to defense and indemnification the doctor has, citing Universal Oven Co. v Chase Manhattan Bank, N. A., 79 AD2d 654 [2d Dept 1980] (“The record indicates that plaintiff was indebted to Jack Maggiore, judgment debtor of defendant Chase. Accordingly, Chase’s attorney, Grogan, acted properly in levying upon this debt (see CPLR 5232, subd [a]”). CPLR § 5232 (a) allows for a “levy upon any interest of the judgment debtor or obligor in personal property not capable of delivery, or upon any debt owed to the judgment debtor or obligor . . .” No cases, however, suggest that the right of a State employee to defense or indemnification under Public Officers Law § 17 converts the State into a cashier directly approachable by those with a judgment against a State employee. Indeed, there is relevant authority in this court to the contrary. Partman v State of New York (UID No. 2001-017-614, Claim No. 99589, Motion No. M-62333, O’Rourke, J.).

In Partman, the court held that an injured party may not oblige the State to provide defense and indemnification pursuant to Public Officers Law § 17 to the judgment creditor of a tortfeasor in the State’s employ. The case concerned a fatal automobile accident where William C. Horel, Jr., a State employee, was convicted of criminally negligent homicide, and in a civil action in Supreme Court he was held liable for approximately $280,000. Horel’s automobile insurer paid $100,000, its policy limit, to plaintiff Partman who never filed a claim against the State in the Court of Claims based on Horel’s conduct. After fruitless efforts to collect from Horel, Partman obtained from Horel an assignment of his own claim to statutory rights of indemnity under Public Officers Law § 17 and then filed a claim in the Court of Claims seeking to be indemnified for the unpaid balance of about $180,000.

The court first took note of the many cases where insurance companies that have paid a judgment or settlement on behalf of a State employee have been held to have standing to sue the State as a subrogee to the employee’s rights under Public Officers Law § 17. It specifically examined Frontier Ins. Co. v State of New York, 197 AD2d 177 [3d Dept 1994] (“Frontier 1994”), another case like Frontier 1991 involving State-employed medical school professors. Standing in Frontier 1994, as in Frontier 1991, also had been achieved by an insurer’s right of subrogation, its right to stand in for its insured. The court in Partman did not answer the question whether Partman, as a judgment creditor and assignee of whatever statutory rights to indemnity Horel had, achieved the same standing as a subrogee insurer under Public Officers Law § 17,[4] disposing of the claim instead on a more fundamental basis. It held claimant did not succeed to Horel’s right to indemnification because Horel himself had no proper claim for indemnification. “[T]here is nothing to be indemnified,” the court said. See Tedesco v A.P. Green Indus., Inc., 8 NY3d 243, 247 [2007] (“a claim for indemnity or contribution accrues only when the person seeking indemnity or contribution has paid the underlying claim”); McDermott v City of New York, 50 NY2d 211, 217 [1980] (“accrual occurs upon payment by the party seeking indemnity”); Frontier 1994, 197 AD2d at 181 (“a claim . . . accrues on the date when final payment is made by the party seeking to be indemnified”). This court agrees with the reasoning in Partman. Here, too, claimant has nothing for which to be indemnified under Public Officers Law § 17.

Even were this court to have reached the opposite legal conclusion from Partman, it appears from the facts as related by both sides on this motion that Dr. Etienne utterly failed to observe the statutory prerequisites which must be satisfied before an employee may be entitled to the benefits of § 17. Public Officers Law § 17 (4) provides:

The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon (i) delivery to the attorney general or an assistant attorney general at an office of the department of law in the state by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document, and (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the state based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by the employee that the state provide for his defense pursuant to this section.

Dr. Etienne never did anything to request defense from the State in the Supreme Court action.

Claimant points out that the Supreme Court action was brought to defendant’s attention during Mr. Duverger’s deposition and was placed on the record at that time. He argues “[t]he State is estopped from asserting notice requirements as a bar to enforcement of the duty to defend and indemnify when it persists in the claim of no responsibility for Dr. Etienne as their employee,” citing Wausau Ins. Cos. v Feldman, 213 AD2d 179 [1st Dept 1995]. This is not an accurate reading of that decision. In Wausau, Downstate’s malpractice insurer was not made aware of a medical malpractice action against a Downstate physician until nine years after the suit was commenced. The insurer asserted this failure of notice as cause for it to deny coverage. The court found Downstate to have been responsible for the delay and held it directly liable for the physician’s defense costs which had been incurred by the physician’s own insurer in error. “[T]he actions of Downstate estop it from disclaiming liability, responsibility and the obligation to save [the physician] harmless and indemnify him under Public Officers Law § 17 (4).” (Id. at 180.) Notice requirements thus were applied to and upheld against Downstate, not set aside as claimant argues. The case is of no relevance to the circumstances here, especially in that Dr. Etienne seemingly was content to accept a default judgment in the Supreme Court action, without any effort whatsoever to defend himself there.

Turning to the Affiliation Agreement and the Practice Management Plan MOU, claimant looks to these contracts to establish Dr. Etienne’s employment relationship with the State and contractual obligations of the State to indemnify the doctor upon which claimant may levy as a judgment creditor. Nowhere in either of these agreements is defense coverage or indemnification extended to Dr. Etienne. The plain words of the documents resolve any remaining dispute about the State’s purported contractual defense and indemnity obligations to the doctor. The Affiliation Agreement defines the relationship between the New York City Health and Hospitals Corporation (“the Corporation”) and Downstate (“the Affiliate”) for the provision of services at Kings County Hospital Center (“the Facility”). Section 22.1 provides for indemnification by the Corporation, not a State institution, which extends to “the Affiliate [and] the Contract Services Providers [physicians] . . . from any and all claims, suits, actions, proceedings, expenses, costs, liability, losses or damages for . . . any acts of malpractice of the Affiliate or the Contract Services Providers . . .” The only indemnity obligation of Downstate under the Affiliation Agreement is found in Section 22.5 (b), requiring this State institution to defend, indemnify and hold harmless the Corporation from the liability, loss, death or damage caused only by its trainees or students at the Facility, that is, Kings County. Nowhere in the Affiliation Agreement is Downstate obliged to defend and indemnify a Contract Service Provider, a physician such as Dr. Etienne, under any circumstances.

The Practice Management Plan MOU pertains to the relationship between Downstate and UPB, a not-for-profit corporation providing financial and practice management services to Downstate faculty. The words indemnification, defense, insurance, malpractice and liability do not appear in any form in the document. The agreement has nothing to do with the defense and indemnity of individual physician-members of the practice management plan.

While the Supreme Court’s default judgment may entitle claimant to recover funds, he is not positioned to receive them directly from the State. Defendant’s pre-answer motion to dismiss the claim is granted.

November 27, 2007
New York, New York

Judge of the Court of Claims

[1].Duplicate claims were filed in this action, No. 113747 on May 25, 2007 and No. 113810 on June 7, 2007. The earlier claim is sworn to only by claimant’s attorney while the later claim is sworn to by Mr. Duverger. They are substantively identical. Defendant moved to dismiss both claims. Subsequently, Claim No. 113747 and its associated motion were withdrawn by stipulation of the parties.
[2].The court considered the following papers on the motion: defendant’s notice of pre-answer motion, together with affirmation in support dated July 16, 2007 and exhibits; claimant’s affirmation in opposition dated October 17, 2007 and exhibits; defendant’s reply affirmation in support dated November 15, 2007.
[3].In the case here, the threshold condition of public employment has not been established, is vigorously denied by defendant (as it was at the trial), and remains only the conclusory assertion of claimant at this juncture. Claimant points to Dr. Etienne’s clinical academic appointment at Downstate, and the Affiliation Agreement and Practice Management Plan MOU to support his position. The court notes that if claimant ultimately were to succeed in establishing that Dr. Etienne was a member of a clinical practice management plan at Downstate, predicated on the Practice Management Plan MOU referenced by claimant in his claim, this would remove the doctor from eligibility for statutory defense and indemnification under Public Officers Law § 17 (11). That subdivision states the provisions of § 17 do not apply “to physicians who are subject to the provisions of the plan for the management of clinical practice income as set forth in the policies of the board of trustees [of the State University of New York], title 8, New York codes, rules and regulations, regarding any civil action or proceeding alleging some professional malpractice in any state or federal court arising out of the physician’s involvement in clinical practice as defined in that plan [footnote omitted].”

[4].The court commented as to that issue:
The court appreciates the potential merit of the argument that the benefits that accrue to an employee under § 17 are not assignable, based upon the language of the statute (§ 17 [5]) or based on an argument that such an assignment would ‘contravene public policy’ (Gen. Ob. Law § 13-101 [3]), however determination of this issue is not necessary to a resolution of this motion. [n 4]