Bastien v. New York Community Hospital et al

Filing 90

MEMORANDUM & ORDER: Based on Bastiens silence, the Court must infer that she has abandoned her suit. And although defendants New York Presbyterian Hospital and Weill Medical College of Cornell University have not moved to dismiss, the inference appl ies to the suit in its entirety. See Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (A district court may, sua sponte, dismiss an action for lack of prosecution[.]). Accordingly, the complaint is dismissed. A copy of this memorandum and order will be mailed to the pro se plaintiff from chambers and by regular mail. Ordered by Judge Frederic Block on 10/9/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------PERLA BASTIEN-LARIVAUX, as
Administratrix of the Estate of OCTA
VIENNE BASTIEN,
Plaintiff,

MEMORANDUM
Case No. 09-CV-4899 (FB) (VVP)

-againstNEW YORK COMMUNITY HOSPITAL;
NEW YORK-PRESBYTERIAN
HOSPITAL; WEILL MEDICAL COLLEGE
OF CORNELL UNIVERSITY; GABRIEL
SPERGEL, M.D.; JACQUELIN BELAMY,
M.D.,
Defendants.
------------------------------------------------------Appearances:
For the Plaintiff:
PERLA BASTIEN-LARIVAUX, pro se
514 Main Street
Lodi, New Jersey 07644

For Defendant New York Community Hospital:
PHILIP L. SUTTER, ESQ.
Aaronson, Rappaport, Feinstein, &
Deutsch, LLP
600 Third Avenue
New York, New York 10016
For Defendant Jacquelin Belamy, M.D.:
KATHRYN M. WALSH, ESQ.
355 Lexington Avenue
New York, New York 10017
For Defendant Gabriel Spergel, M.D.:
ANTHONY A. LENZA, JR., ESQ.
Amabile & Erman, P.C.
1000 South Avenue
Staten Island, New York 10314

BLOCK, Senior District Judge:
Perla Bastien-Larivaux (“Bastien”), plaintiff-administratrix in this wrongful
death action pursuant to 42 U.S.C. §1983 and New York law, initially proceeded through
counsel. However, on January 11, 2013, Magistrate Judge Viktor Pohorelsky granted
counsel’s motion to withdraw. Bastien was informed that the estate must be represented
by counsel, and given until March 6, 2013, for new counsel to file a notice of appearance.
Bastien did not retain new counsel. The Court, however, granted Bastien’s
request for an extension of time to obtain an attorney, and advised her that the final
deadline for doing so was April 22, 2013. Bastien was again advised that she could not
proceed pro se and, that if an attorney failed to appear, the case would likely be dismissed.
Bastien did not respond. Nor did she appear at the next status conference on May 29, 2013.
Defendants New York Community Hospital, Jacquelin Belamy, and Gabriel Spergel, now
move, pursuant to Federal Rule of Civil Procedure 41(b), to dismiss for failure to prosecute.
The Second Circuit has explained that “[i]nvoluntary dismissal for a
plaintiff’s failure to prosecute is a matter committed to the discretion of the trial court by
Rule 41(b) . . . . However, dismissal is a harsh remedy to be utilized only in extreme
[circumstances].” Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995) (internal quotations and
citations omitted). When considering dismissal as a sanction for failure to prosecute, a
district court must consider “whether: (1) the plaintiff’s failure to prosecute caused a delay
of significant duration; (2) plaintiff was given notice that further delay would result in
dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to
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alleviate court calendar congestion was carefully balanced against plaintiff’s right to an
opportunity for a day in court; and (5) . . . the efficacy of lesser sanctions.” United States ex
rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004); see also Nita v. Connecticut
Dep't. of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994) (noting that no particular factor is
dispositive). Here, however, those factors are inapposite; the question is not whether
Bastien should be sanctioned for failing diligently to pursue her suit, but simply whether
she intends to do so.
Based on Bastien’s silence, the Court must infer that she has abandoned her
suit. And although defendants New York Presbyterian Hospital and Weill Medical College
of Cornell University have not moved to dismiss, the inference applies to the suit in its
entirety. See Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (“A district court
may, sua sponte, dismiss an action for lack of prosecution[.]”). Accordingly, the complaint
is dismissed.

SO ORDERED.

/s/ Frederic Block_
FREDERIC BLOCK
Senior United States District Judge

Brooklyn, New York
October 9, 2013

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