This matter is before the Court on a Motion to Dismiss filed by Defendants, Faxton St. Luke's Healthcare a/k/a Mohawk Valley Health System; Lingappa Amernath, MD; Emergency Physician Services of New York, P.C.; TEAMHealth; Karen Brown, C.S.W.; Leslie Congdon, R.N.; Alonah Apoor Nursing Assistant Care Assistant. Defendant's Faxton MVHS, Karen Brown, CSW, Leslie Congdon, RN, Alonah Apoor Nursing Assistant, brought a Motion for an Order Dismissing the Complaint for failing to state a cause of action pursuant to §3211 of the New York CPLR and in the alternative for consolidation or joinder with related pending actions. Defendant Securitas Security Services USA's Motion to Dismiss was granted by the Court at oral argument. Oral argument was held on December 11, 2018.

On or about January 6, 2015, Plaintiff, Paul Bumbolo, (hereinafter Plaintiff) was brought by the Utica Police and Utica Fire Department to Faxton - St. Luke's Hospital, (hereinafter Hospital) pursuant to §9.41 of the New York Mental Hygiene Law. Plaintiff was admitted to the emergency department of the Defendant Hospital at 1:53 p.m. and was seen by Defendant Amernath as well as other staff at the Defendant hospital. Plaintiff alleges he was discharged by [*2]Defendant Amernath and the Defendant Hospital's emergency department at approximately 7:46 p.m. Upon returning home, Plaintiff, murdered three of his relatives at their residence.

After being charged with those murders, Plaintiff entered a plea of not guilty by reason of mental disease or defect in Oneida County Court on November 29, 2016. Thereafter, on February 18, 2017, an Oneida County Court Judge adjudicated Plaintiff not guilty by reason of mental disease or defect. Thereafter, Plaintiff was remanded to a State Psychiatric Institute where he presently is housed.

Plaintiff, in his complaint, alleges the following negligent conduct on the part of the represented Defendants: a) failing to properly examine the Plaintiff; b) failing to properly take a history from the Plaintiff; c) failing to perform a proper psychiatric exam; d) failing to retain the Plaintiff so that he could receive a proper psychiatric work up; e) discharging the Plaintiff without notifying the Utica Police Department; f) failing to diagnose and treat the Plaintiff's mental illness; g) failing to protect the Plaintiff from himself and others; and h) failing to diagnose the Plaintiff's ongoing and obvious psychiatric condition and acute mental illness and violent propensities, and to obtain a diagnosis and to treat the condition.

Defendants arguments vary but can be distilled to include two main issues. First, Defendants' argue that Plaintiff's case cannot survive their Motion to Dismiss because dating back to 1894 in Williams v. Hays, New York Courts have consistently held that an insane person is just as responsible for his torts as a sane person. Defendants further argue that an insane person may not recover damages which are the direct consequence of his own illegal conduct, following the 1889 case of Riggs v. Palmer, 115 N.Y at 513, 22 N.E. 188 (NY 1889) and its' progeny, including Barker v. Kallash, 63 NY2d 19 (1984).

However, this Court remains unconvinced that this line of cases is controlling here. The issue presented is whether an individual can state a cause of action for medical malpractice and survive a Motion to Dismiss when the facts alleged are to be deemed as true. Defendant's Motion to Dismiss pursuant to New York CPLR §3211(a)(7) seeks an Order dismissing Plaintiff's Complaint in its entirety with prejudice for failure to state a cause of action. Of course, under §3211(a)(7), the allegations in the Complaint are deemed to be true and the pleader, here, the Plaintiff, is entitled to every favorable inference that may be drawn. Rovello v. Orafino Realty Co., Inc., 40 NY2d 633 (1976).

The appropriate standard to apply in evaluating a Motion to Dismiss pursuant to §3211(a)(7) is well settled. In determining whether a Complaint is sufficient to withstand a Motion to Dismiss pursuant to §3211(a)(7), the sole criterion is whether the pleading states a cause of action. A cause of action is stated when and if, from the four corners of the Complaint, factual allegations, which taken together, manifest any cause of action, cognizable at law, a Motion to Dismiss will fail. 511 West 232nd Owners Corp v. Jennifer Realy Co., 98 NY2d 144, 152 (2202). As the Court evaluates the Complaint it must accept each and every allegation put forward by the Plaintiff without expressing any opinion as to the Plaintiff's ability ultimately to establish the truth of these averments before the trier of facts. Id. Of course, the Court is required to liberally construe the pleadings and must afford the pleader every possible favorable inference. While the Court is very mindful of the extraordinary and heinous circumstances alleged to be present in this case, this Court is legally bound to decide this Motion to Dismiss under the standards articulated above.

This Complaint, filed by Plaintiff, is alleging medical malpractice against a licensed physician, a hospital and their hospital staff. There are four elements necessary to state a claim in a medical malpractice case. First, whether the medical professional accused of medical malpractice had a duty of care to the patient that is, was a doctor-patient relationship was present. Next, the Complaint must allege that the physician failed to meet this duty, in other words, did the treatment given to the patient meet the standard of care a reasonable professional in a similar situation with similar training would provide. Third, the Plaintiff must show that the failure to fulfill this duty was the proximate cause of the injury. Finally, it must be established that the medical malpractice resulted in an injury to the Plaintiff.

Plaintiff alleged: 1) he was brought to Defendants facility under §9.41 by police or their agents; 2) he was admitted into the hospital's emergency room; 3) he was treated there by a doctor and other staff; 4) he was discharged by the doctor and the facility; 5) he returned to his home and murdered three members of his family.

As stated above, Plaintiff was determined by Oneida County Court to lack criminal responsibility by reason of mental disease or defect. In this Court's view, the Riggs v. Palmer case cannot resolve the precise question before the Court. In Riggs, the Defendant, Elmer Palmer, was sixteen years old and lived with his grandfather, Francis Palmer. Elmer knew of his grandfather's Will and he also knew that he was going to inherit substantial property, both real and personal, when his grandfather died. After his grandfather remarried, Elmer became concerned that his grandfather would revoke those provisions in his Will so he murdered his grandfather by poisoning him. The Riggs Court concluded that he murdered his grandfather so he could have "the speedy enjoyment and possession of the property in his grandfather's will." See id. at 514. Thereafter, Elmer claimed under the Will which was found to have been made in due form and admitted to probate. The Riggs Court determined that on these facts, that Elmer committed the murder "expressly to vest himself with an estate." Elmer "made himself an heir by committing the murder and he seeks to take property as the fruit of his crime." Id. The Court of Appeals in Riggs made their decision on the "facts found" and determined that the report of referee be reversed and entered judgment as follows:

"That Elmer E. Palmer and the administrator be enjoined from using any of the personalty or real estate left by the testator for Elmer's benefit; that the devise and bequest in the will to Elmer be declared ineffective to pass title to him." Id. at 515.

Defendants reliance on Riggs is misplaced. First, Elmer was tried and was convicted of murder in the second degree and at the time this action was commenced, Elmer was serving out his sentence in the State reformatory. See Id, at 514.

It is critical to note that in Riggs, Elmer was not found to be insane or suffering from mental disease or defect. Quite the contrary, Elmer was convicted of intentional murder and the facts as found by the Court in Riggs support that criminal conviction. Elmer was concerned by his grandfather's remarriage and by statements made by his grandfather that he was reconsidering his substantial bequest to his grandson. The Riggs Court concluded that Elmer poisoned and murdered his grandfather "expressly to vest himself with an estate." See Id at 190.

Moreover, the Riggs Court reasoned that these facts were similar to a situation where a person obtains a life insurance policy on another person then murders that person to collect the [*3]insurance proceeds. It also found similar the situation where an individual buys fire insurance and then sets fire to the building to collect the insurance proceeds. See Id. Such is not the case here.

Certainly there can be no dispute that the facts in the instant case are distinguishable from Riggs. There are no facts alleged that the Plaintiff did any intentional conduct by a plan or a scheme or committed these murders to gain a pecuniary benefit. Moreover, there are no facts indicating that Plaintiff was a beneficiary of any of the decedents' estates nor did Plaintiff seek to be a beneficiary. Likewise, there are no facts indicating that Plaintiff was motivated by greed to murder the decedents in order to obtain the property through any means by will or intestate. More importantly, Plaintiff was not convicted of intentional murder, murder in the second degree. Quite the contrary, Plaintiff was determined to lack criminal responsibility by reason of mental disease or defect and is an institution for treatment. These factual distinctions are significant and substantial.

Here, plaintiff alleges Defendants care and treatment of him fell below the standard of care, that is that he was the victim of negligent conduct. Clearly, Riggs does not and cannot determine this case.

Defendants also argue that "an insane person remains civilly responsible for his torts" citing Rosen v. Schivarty 148 AD3d 653 (1st Dep't 2017) citing Williams v. Hays, 143 NY 442 (1894). Once again, this Court finds this argument unpersuasive considering the facts in the case before this Court. As stated above, the Plaintiff is not being sued for wrongful death in this case. Here, Plaintiff is suing the various Defendants for medical malpractice alleging that their care of him while a patient was negligent in that it fell below the standard of care.

The Defendants also urge the court to dismiss Plaintiff's case based upon the facts and holding in Matter of Demesyeux, 42 Misc 3d 730, 737 (Nassau Cty. Surr. Ct. 2013). This was an action brought in Surrogate's Court, apparently a case of first impression in New York. The issue in Demesyeux was whether a person who pled not guilty by reason of mental disease or defect in a criminal proceeding is disqualified from sharing in the proceeds of a wrongful death compromise arising out of the killing of her three children by her own hands. See Id. The Demesyeux court analyzed whether under the relevant wrongful death statutes the mother should be disqualified from receiving a share of the proceeds. There the court concluded she could not recover since her children died as a result of her actions. While Defendants argued vigorously that this case was closest to the instant case and should control, once again, this Court disagrees. While it is true that the Plaintiff here and the Plaintiff in Demesyeux were both found to be not criminally responsible by mental disease or defect for causing the death of their family members, the Plaintiff in Demesyeux was seeking to share in the proceeds of the wrongful death case involving the children that she murdered. Here, Plaintiff is not seeking to benefit from the proceeds of the estates of his victims. Rather, Plaintiff has alleged malpractice against these Defendants for the negligent care he was given prior to causing the death of his family members. Thus, Demesyeux does not support the dismissal of Plaintiff's case.

It is important to note that at this early stage of the litigation, before depositions and other discovery is complete, this court is not determining the merit of Plaintiff's claims, but rather whether Plaintiff has stated a claim for medical malpractice within the four corners of his Complaint. This court concludes that Plaintiff has stated such a claim.

Accordingly, Defendants' Motions to Dismiss pursuant to CPLR 3211(a)(7) are DENIED as Plaintiff has stated a cause of action for medical malpractice. Defendants Motion to Consolidate this case with the related cases: Ricco Torres v. Faxton-St. Luke's Healthcare, et al, Index No.: EFCA2018-001503; Joseph Bumbolo, Administrator of the Estate of Michele Bumbolo vs. Faxton-St. Luke's Healthcare, et. al, Index No.: EFCA2018-001504; Joseph Bumbolo, Administrator of the Estate of Michael Bumbolo v. Faxton-St. Luke's Healthcare, et al, Index No.: EFCA2018-001505, is GRANTED, for the limited purpose of discovery.

Plaintiff is to submit an Order consistent with this Decision.