MEMORANDUM & ORDER Defendant the United States of America (the “Defendant”) moves under Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 12(c) for a judgment on the pleadings granting its motion to dismiss this Federal Tort Claims Act (“FTCA”) action. (Def. Mot., D.E. 34; Pl. Cross-Mot., D.E. 36; Dender Decl., D.E. 37; Pl. Opp., D.E. 38; Pl. Ltr. Resp., D.E. 40; Def. Reply, D.E. 41.) In the alternative, Defendant moves for summary judgment under FED. R. CIV. P. 56. (See, Def. Mot.) Plaintiff Philip Barbara (“Plaintiff”) brings the action as the Preliminary Executor of the Estate of Frank Barbara (the “Decedent”), formerly a patient at the Department of Veteran Affairs (“VA”) Medical Center located in Northport, New York (“Defendant” or “VAMC Northport”). At the time of the Decedent’s death, he was under the supervision of a home health aide. VAMC Northport had contracted with a private company, All Metro Health Care Services, Inc. (“All Metro”) who provided the home health aide. The Complaint raises five causes of action: (1) Defendant was negligent in, inter alia, hiring, screening, training, and employing All Metro; (2) Defendant committed medical malpractice in failing to render proper and adequate medical care to the Decedent; (3) Defendant was liable under a theory of respondeat superior; (4) Defendant was negligent in hiring, training, and retaining its own employees, in addition to All Metro and the home health aide who cared for the Decedent; and (5) Defendant was liable for the Decedent’s wrongful death. Plaintiff also asks for punitive damages. (See generally Compl., D.E. 1.) Defendant now seeks dismissal, arguing that the Court lacks subject matter jurisdiction because of the FTCA’s discretionary function exception. Defendant also contends that, even if that exception does not apply, sovereign immunity precludes suits against Defendant based on the actions of All Metro, an independent contractor. Further, Defendant asserts that Plaintiff’s failure to submit a certificate of merit with the complaint warrants dismissal of the medical malpractice claim, pursuant to New York State law. Defendant only addresses punitive damages in its reply. Plaintiff opposes the motion, but only in part. He does not oppose the dismissal of the first, second, and fourth causes of action; however, he opposes dismissal of the medical malpractice and wrongful death causes of action. Plaintiff also cross-moves for an extension of time to file the certificate of merit, nunc pro tunc. (See Cross Mot.) For the reasons that follow, Defendant’s Rule 12(c) and summary judgment motion is GRANTED in part and DENIED in part and Plaintiff’s cross-motion is denied as MOOT. The parties agree to the dismissal of the first, third, and fourth causes of action and they are therefore DISMISSED. In addition, Plaintiff’s fifth cause of action for wrongful death, seemingly brought under common law, is meritless. The Court denies the motion with regard to the second cause of action, medical malpractice, and denies Plaintiff’s cross-motion as moot. The Court declines to rule on punitive damages at this stage of the litigation. The Court’s partial denial of Defendant’s motion is without prejudice. The Parties are therefore directed to meet and confer regarding a briefing schedule as to the potential resubmission of that motion in order to substantively address the medical malpractice and punitive damages issues. BACKGROUND1 I. The Complaint and Initial Proceedings Plaintiff brought this action in April 2017. In the Complaint, Plaintiff alleged that: (1) the Decedent was a patient at VAMC Northport; (2) Defendant contracted with All Metro to provide home health services to New York State residents, which included the Decedent (Compl.
6.1-6.4); (3) Marge Herold (“Herold”) was a paraprofessional and/or home health aide who worked for All Metro (Compl. 6.5); (4) Herold was assigned to care for the Decedent at his home on a daily basis, between 9:00 am and 5:00 pm (Compl. 6.10); and (5) on June 12, 2014, at approximately 2:00 pm, the Decedent choked to death at his home while under Herold’s care and supervision (Compl. 6.11). Plaintiff raises five causes of action. First, Defendant was negligent, careless, and reckless in contracting with, screening, hiring, training, and retaining All Metro, because the company and its employees, including Herold, were neither qualified nor capable of providing appropriate medical care (the “First Cause of Action”). (Compl. 6.15.) Plaintiff further alleges that this negligence inured to the Decedent’s detriment, resulting in his death. (Compl. 6.16.) Second, Plaintiff argues that Defendant, in particular VAMC Northport and its agents, committed medical malpractice in failing to render proper and adequate medical and hospital care to Decedent in accordance with community standards and elsewhere (the “Second Cause of Action”). (Compl.
