Opinion
April 11, 1996
Appeal from the Supreme Court, Queens County (Luther Dye, J.).
Plaintiff's medical malpractice and wrongful death claims, which are founded in tort and are premised on JIB's vicarious liability for the negligence of its employees or agents, are not preempted by the Employee Retirement Income Security Act of 1974 (ERISA) since the claims do not implicate the administration of the ERISA-qualified plan itself ( Dukes v. U.S. Healthcare, 57 F.3d 350 [3d Cir], cert denied ___ US ___, 116 S Ct 564; Pacificare of Okla. v. Burrage, 59 F.3d 151 [10th Cir]; see also, Lupo v. Human Affairs Intl., 28 F.3d 269 [2d Cir]). We have considered JIB's other arguments and find them to be without merit.
Concur — Milonas, J.P., Wallach, Kupferman, Ross and Williams, JJ.