Allah et al v. The City of New York et al
Filing
135
MEMORANDUM AND ORDER: For the reasons stated above, Allah's motion for reconsideration is denied. The Northwell Defendants remain dismissed from this action. Allah's motion for a stay of proceedings is granted on consent of the remaining p arties. The Court directs Allah to provide the Court with an update every 60 days until the underlying Family Court matter is ultimately resolved. Ordered by Judge Carol Bagley Amon on 12/13/2019. Associated Cases: 1:15-cv-06852-CBA-SJB, 1:16-cv-00333-CBA-LB (Fernandez, Erica)
FILED
IN CLERK'S OFFICE
UNITED STATES DISTRICT COURT
U.S. DISTRICT COURT E.D.N.Y.
EASTERN DISTRICT OF NEW YORK
-X ^ DEC 1 7 2019 ^
BISHME ALLAH; NAKISHA CLAIBORNE;
NAKISHA CLAIBORNE,for MINOR
BROOKLYN OFFICE
CHILD, A.A.,
Plaintiffs,
-against-
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
15-CV-6852(CBA)
(LB)
THE CITY OF NEW YORK; GLADYS
CARRION, Commissioner of the New
York City Administration for Children's
Services; MARGARET ADEYELE,a Child
Protective Specialist Supervisor for the New
York City Administration for Children's
Services; MITCHELL WALKER,a Child
Protective Specialist Supervisor for the New
York City Administration for Children's
Services; BAAJNARINE SINGH,a Child
Protective Specialist for the New York City
Administration for Children's Services;
MICHELLE GLATT, an Attorney for the
New York City Administration for Children's
Services; THE STATE OF NEW YORK;
MARY R. O'DONOGHUE,a Judge for the
Family Court of the State of
New York, County of Queens,
Defendants.
-X
BISHME ALLAH,
Plaintiff,
-againstThe STATE OF NEW YORK;PAMELA LEIGH
BISHOP,an Assistant District Attorney; MARY
R. O'DONOGHUE,a Judge for the Family Court
of the State of New York, County of Queens; The
CITY OF NEW YORK; GLADYS CARRION,
Commissioner of the New York City
Administration for Children's Services;
WILLIAM J. BRATTON,Commissioner of the
New York City Police Department; JOHN
PHELAN,a Detective for the New York City
Police Department; MARGARET ADEYELE,a
Child Protective Specialist Supervisor for the New
16-CV-333(CBA)
(LB)
York City Administration for Children's
Services; DAPHNE ALTEMA,a Child
Protective Specialist Supervisor for the New York
City Administration for Children's Services;
BAAJNARINE SINGH,a Child
Protective Specialist for the New York City
Administration for Children's Services;
TERRI WALKER,a Child Protective Manager
for the New York City Administration for
Children's Services; NORTH SHORE-LONG
ISLAND JEWISH HEALTH SYSTEM;
MICHAEL J. DOWLING,President and
Chief Executive Officer for the North Shore-
Long Island Jewish Health System; JAMIE
HOFFMAN-ROSENFELD,a Physician for the
North Shore-Long Island Jewish Health System,
Defendants.
X
AMON,United States District Judge:
Plaintiff Bishme Allah filed this action pursuant to 42 U.S.C. § 1983 and New York law
against various officials alleged to be involved in his arrest, prosecution, and subsequent Family
Court proceedings. (D.E. # 74 ("Third Amended Complaint," or "TAC").) On September 28,
2018, this Court issued a Memorandum and Order granting a motion to dismiss brought by
defendants Northwell Health and Dr. Jamie Hoffman-Rosenfeld (collectively, the "Northwell
Defendants"), and defendants Richard Brown and Leigh Bishop,(the "D.A. Defendants"), largely
based on the doctrines of absolute and qualified immunity. (D.E. #108("M&O").) On October
26,2018, Allah filed a motion asking the Court to reconsider the portion ofthe M&O determining
that the Northwell Defendants were entitled to qualified immunity on his federal and state-law
claims, arguing:(1)that the Court improperly took judicial notice of documents extraneous to the
Amended Complaint;(2)that qualified immunity at the motion to dismiss stage cannot be granted
"unless it can be found [o]n the face of the complaint"; and (3)that the Court failed to accept as
true several allegations that were pleaded in his Amended Complaint. (D.E.#113("Mot.").) On
January 4, 2019, Allah brought a motion to stay the proceedings pending the resolution of the
underlying state Family Court proceedings. (D.E. # 121.) For the reasons stated below, Allah's
motion for reconsideration is denied,' and his motion to stay is granted with respect to the
remaining defendants.
DISCUSSION
Because the Court assumes familiarity with the facts recounted thoroughly in the
September Memorandum and Order,
(M&O at 2-9), background will be given only as is relevant
to the discussion of each of Allah's challenges.
I.
Motion for Reconsideration
The decision to grant or deny a motion for reconsideration is within the sound discretion
of the district court.
Devlin v. Transp. Commc'n Int'l Union. 175 F.3d 121, 132 (2d Cir.
1999). The standard for granting reconsideration is "strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked." Analvtical Survevs. Inc. v. Tonga Partners. L.P.. 684 F.3d 36, 52(2d Cir. 2012)
(quoting Shrader v. CSX Transp.. Inc.. 70 F.3d 255, 257 (2d Cir. 1995)). To preserve scarce
'The Northwell Defendants, in addition to their arguments on the substance of Allah's motion for reconsideration,
correctly point out that the motion was untimely. Local Rule 6.3 requires that a motion for reconsideration be filed
"fourteen (14) days after the entry of the Court's determination of the original motion[.]" Allah's motion was filed
on October 26, 2018—^28 days after the Court's M&O was issued. (See D.E. # 108, 113.) Allah urges the Court to
construe his motion as one under Federal Rule of Civil Procedure 59(e),(see D.E. # 109, 117), which allows for "28
days after the entry of judgment." Fed. R. Civ. P. 59(e). However, because Rule 59(e) "applies only to a final
'judgment,' and not the non-final order which is the subject of plaintiffs instant motion," it is inapplicable here.
Boddie v. New York State Division of Parole. No. 08-CV-911 (KAM),2009 WL 1938981, at *2 n.3 (E.D.N.Y. July
7, 2009). Although failing to file the reconsideration motion by Rule 6.3's deadline is alone a sufficient reason to
dismiss it, the Court will proceed to articulate why it fails on the merits.
judicial resources and to avoid piecemeal litigation, a motion for reconsideration is "narrowly
construed and strictly applied so as to avoid repetitive arguments on issues that have been
considered fully by the Court." Enigwe v. Zenk. No. 03-CV-854(CBA), 2007 WL 2713849, at
*7(E.D.N.Y. Sept. 14, 2007)(quoting Dellefave v. Access Temps.. Inc.. No. 99-CV-6098, 2001
WL 28677, at *1 (S.D.N.Y. Mar. 22, 200N): see also Shrader v. CSX Transp. Inc.. 70 F.3d 255,
257 (2d Cir. 1995)(stating that reconsideration "should not be granted where the moving party
seeks solely to relitigate an issue already decided"). In addition, a party is not permitted to
"advance new facts, issues or arguments not previously presented to the Court" on a motion for
reconsideration. Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp.. 948 F.2d
111,115(2d Cir. 1991)(quoting Schonberger v. Serchuk.742 F. Supp. 108,119(S.D.N.Y. 1990)).
A. Judicial Notice
Allah first argues that the Court erred by taking "judicial notice of extraneous materials,
for the truth of the matter[] asserted." (Mot. at 2446.^) Specifically, Allah takes issue with the
Court's use of two documents when determining that the Northwell Defendants were entitled to
qualified immunity:(1)the August 9, 2017, opinion of the Queens County Family Court; and (2)
the Medical Assessment by Dr. Hoffman-Rosenfeld. The Court will address each in turn.
1) Family Court Opinion
On the August 9,2017, Judge Jolley ofthe Queens County Family Court issued an opinion
after hearing testimony from Allah, Hoffman-Rosenfeld, and several other witnesses, that
concluded that the New York Administration for Children's Services had "proven by a
preponderance ofthe evidence that [J.R.] sustained injuries, which would not ordinarily occur but
for the acts or omissions of another." (See D.E. # 97-2("Family Court Op.") at 7.) Judge Jolley
^ Because ofthe pagination error in Allah's brief, the Court will cite to the ECF page numbers for this document.
also found Hoffman-Rosenfeld "credible," (id at 4, 6, 8), and that "based on Doctor Hoffman
Rosenfeld's expert testimony, [J.R.'s] injuries were acute, fresh and recently inflicted,
meaning close in time to when he was admitted to the hospital on November 11, 2014,"
(id at 8).
Allah argues that the Court erred during its qualified immunity analysis by taking judicial
notice ofthe opinion,as Allah describes it,"for the truth ofthe matters asserted" in that proceeding,
when it is proper to take notice only "to establish the fact of such litigation and related filings."
(Mot. at 2446). The Court first notes that Allah expressly consented to the Court consulting the
Family Court opinion in a supplemental brief submitted on the issue of collateral estoppel, stating
that he "accepts that this Court has the authority to review and consider the underlying family court
order in deciding this 12(b)(6) motion." (D.E.# 105 at 1.)
Regardless,the Family Court opinion was not dispositive to the Court's conclusion that the
Northwell Defendants were entitled to qualified immunity and therefore is not a ground for
reconsideration of that conclusion. With respect to the federal claims, the Court concluded—
without reference to the Family Court opinion—^that Hoffman-Rosenfeld's assessment of J.R. and
her reporting ofsuspected abuse could not be deemed "contrary to clearly established law."(M&O
at 33.) With respect to the state-law claims, the Court concluded—again without discussing the
Family Court opinion—^that based on the allegations as presented in the Amended Complaint,
Hoffman-Rosenfeld was entitled to qualified immunity under the CPSA. (Id. at 38.) The portions
of the analysis where the Court discussed the Family Court opinion were both alternative
justifications for finding qualified immunity. fSee M&O at 33-34 ("Secondly, even if the rights
at issue were clearlv defined, dismissal of the federal claims would still be warranted given the
objective reasonableness ofHoffman-Rosenfeld's assessment.")(emphasis added),38("Hoffman-
Rosenfeld is also entitled to good faith immunity because Allah has failed to allege that she acted
with willful misconduct or gross negligence.")(emphasis added).) Without consulting the Family
Court opinion, the result would not be different. Accordingly,the Court declines to reconsider its
ultimate conclusion based on the complained-of discussion ofthe Family Court opinion.
2) Dr. Hoffman-Rosenfeld's Medical Assessment of J.R.
Allah also takes issue with the Court referencing information from Hofftnan-Rosenfeld's
documented medical assessment ofJ.R. in its decision. Again, Allah consented to the Court doing
so in his motion papers. (See D.E. # 97 at 9 ("Plaintiff is not opposed to judicial notice of the
MOU (Exhibit B), given its numerous incorporation into Defendants' 12(b)(6) Motion, and
Plaintiffs responses in his 12(b)(6) arguments. Plaintiff also does not contest the inclusion of
Exhibit C,three pages of Dr. Hoffman-Rosenfeld's assessment, as long as it is redacted when filed
....").)
And even if Allah had not consented, it is well settled that "'when a plaintiff chooses not
to attach to the complaint or incorporate by reference a[document] upon which it solely relies and
which is integral to the complaint,' the court may nevertheless take the document into
consideration in deciding the defendant's motion to dismiss, without converting the proceeding
into one for summary judgment." Int'l Audiotext Network. Inc. v. American Tel. & Tel. Co.. 62
F.3d 69, 72(2d Cir. 1995)(quoting Cortec Indus.. Inc. v. Sum Holding L.P.. 949 F.2d 42, 47-48
(2d Cir. 1991)). Allah's Amended Complaint extensively refers to and quotes from HoffmanRosenfeld's medical assessment,(see TAC
102-04,106,108,114,116, 142,171,173-75,178,
181), making it "integral" to the pleading and appropriate for the Court to consider when deciding
the motion to dismiss.^ See Global Network Commc'n. Inc. v. Citv of New York. 458 F.3d 150,
^ Allah points to one recent case, Campbell v. Hanson. No. 17-CV-1024 (ALC), 2018 U.S. Dist. LEXIS 111215
(S.D.N.Y. June 29, 2018), which states that "[a]s a general matter, the Court may not take judicial notice of medical
156 (2d Cir. 2006)(stating that an extrinsic document is "integral to the Complaint" when the
"plaintiff[] rel[ies] on the terms and effect of[the] document in drafting the complaint"); Weaver
V. City of New York. No. 13-CV-20(CBA), 2014 WL 950041, at *2(E.D.N.Y. Mar. 11, 2014)
("When ruling on a Rule 12(b)(6) motion to dismiss a complaint... a court may consider ...
'documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in
bringing suit.'"(quoting Chambers v. Time Warner Inc.. 282 F.3d 147,153(2d Cir. 2002))). Allah
is therefore not entitled to reconsideration on the ground that the Court used the document. The
Court was entitled to do so because he had made the document integral to his complaint.
B. Qualified Immunity on a Motion to Dismiss
Allah next contends that even if the Court was permitted to consult the Family Court
opinion and medical assessment, "[tjhere is no case law which permits the use of external
materials, even with judicial notice, on deciding the issue of Qualified Immunity [on a motion to
dismiss]." (Mot. at 2449.) Instead, he argues that a finding of qualified immunity on a motion to
dismiss is appropriate only if it can be found on "the face of the complaint." (Id) The Second
Circuit has never held that the typical procedure for evaluating a 12(b)(6) motion, which includes
consideration of "documents appended to the complaint or incorporated by reference, and to
matters of which judicial notice may be taken," Tarshis v. Riese Ore.. 211 F.3d 30, 39 (2d Cir.
2000), abrogated on other grounds bv Swierkiewicz v. Sorema N.A.. 534 U.S. 506 (2002), does
not apply when analyzing whether a defendant is entitled to qualified immunity. In fact, it recently
stated the opposite to be true;
records." Id,at *14-*15. The Court first notes that this is not a controlling decision that would require reconsideration.
Moreover, Campbell also noted the precedent cited here, and stated that it was not argued that the plaintiff "had
possession of, or relied upon" the particular medical records at issue when drafting the complaint. See id. It is
therefore distinguishable—here, it is clear that Hoffman-Rosenfeld's assessment was extensively relied upon and
central to the allegations in the Amended Complaint.
We review de novo a district court's denial ofa motion forjudgment on the pleadings
based on qualified immunity. See Anderson v. Recore. 317 F.3d 194, 197(2d Cir.
2003); Garcia v. Does. 779 F.3d 84, 91 (2d Cir. 2015). We apply the same standard
as that applicable to a motion under Rule 12(b)(6), accepting the allegations
contained in the complaint as true and drawing all reasonable inferences in favor of
the nonmoving party. Anderson. 317 F.3d at 197. However, when the record
includes a video that the parties concede is authentic and accurate, as is the case here,
we view the allegations of the complaint as true only "to the extent that they are not
contradicted by video evidence."
Garcia. 779 F.3d at 88.
Kass V. Citv of New York. 864 F.3d 200, 205-06 (2d Cir. 2017). Allah attempts to distinguish
Kass by arguing that "Kass was a 12(c) motion, where there was no dispute between parties as to
the facts ofthe case."(Mot. at 2450.) His attempt to find daylight between Rule 12(b)(6)and 12(c)
is futile; "[t]he standard for addressing a Rule 12(c) motion for judgment on the pleadings is the
same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v.
Caplaw Enters.. 448 F.3d 518, 521 (2d Cir. 2006). Allah also cites to McKenna v. Wright. 386
F.3d 432(2d Cir. 2004), which does indeed state that "the facts supporting [qualified immunity
must] appear on the face of the Complaint...." (Id. at 436.) However, a closer examination of
that passage in context reveals that the court is simply reciting the 12(b)(6) standard more
generally:
Of course, a defendant presenting an immunity defense on a Rule
12(b)(6) motion instead of a motion for summary judgment must
accept the more stringent standard applicable to this procedural
route. Not onlv must the facts supporting the defense appear on the
face of the complaint, but, as with all Rule 12(b)(6) motions, the
motion may be granted only where it appears beyond doubt that the
plaintiff can prove no set offacts in support of his claim that would
entitle him to relief.
Id.(emphasis added)(internal quotation marks and citation omitted). McKenna does not explicitly
hold that on a motion to dismiss a finding of qualified immunity is confined to the allegations in
the complaint and may not consider documents integral to it; that case does not concern documents
integral to the complaint. In light ofKass and without Allah pointing to any controlling precedent
stating otherwise, Allah's argument is without merit.
C. Allah's Remaining Arguments
In a section entitled "Controlling Factual Mat[t]ers that Might Reasonably Alter the
Decision of the Court," Allah contests three additional conclusions that the Court made when
deciding the motion to dismiss. (Mot. at 2451-2454.)
First, Allah contends that the Court erred when it determined that Hoffman-Rosenfeld did
not diagnose J.R. with Shaken Baby Syndrome("SBS")or Abusive Head Trauma("ART")in her
medical assessment. (Mot. at 2452-53.) Allah's argument is limited to the fact that his Amended
Complaint "repeatedly states" that Hoffman-Rosenfeld found SBS and ART in her assessment,
and that the Court presumably must credit such allegations on a motion to dismiss. In its M&O,
the Court explained why it did not do so:
First, although Allah makes much of the fact that Hoffman-Rosenfeld's
purported diagnosis of SBS was incorrect and that a diagnosis of SBS inevitably
points to the "last caregiver," which in this case was him,(Supp. 0pp. at 4), the
allegations that Hoffman-Rosenfeld diagnosed SBS are contradicted by all of the
documentary evidence that Allah has conceded that the Court may consider in
deciding this motion. Hoffman-Rosenfeld's medical assessment of J.R. does not
mention SBS,the Press Release issued by the D.A. Defendants announcing Allah's
arrest and describing J.R.'s injuries as conveyed to police officers by HoffmanRosenfeld does not mention SBS,and the 25-page Family Court opinion,including
the Family Court's summary of Hofftnan-Rosenfeld's testimony does not mention
SBS.
*
*
*
Because the allegations that Hoffman-Rosenfeld diagnosed J.R.'s injuries
as the result from SBS are contradicted by the material that the Amended Complaint
is based upon, it is not necessary to accept the allegations as true that HoffcanRosenfeld caused Allah to be wrongly targeted by the investigation by her diagnosis
ofSBS.^L-7 Designs.Inc. v. Old Navv. LLC.647 F.3d 419,422(2d Cir. 2011)
(holding that, for the purposes of deciding a motion to dismiss, courts take
allegations as true "unless contradicted by ... documentary evidence ... from the
exhibits attached" to the complaint); TufAmerica. Inc. v. Diamond. 968 F. Supp.
2d 588,592(S.D.N.Y. 2013)("Ifa document relied on in the complaint contradicts
allegations in the complaint, the document, not the allegations, control, and the
court need not accept the allegations in the complaint as true."(internal quotation
marks omitted)); Koulkina v. Citv of N.Y.. 559 F. Supp. 2d 300, 329 (S.D.N.Y.
2008)("The exhibits to the [a]mended [cjomplaint contradict the[ ] allegations
[contained in the amended complaint] . . . . [SJuch allegations cannot survive a
motion to dismiss when they are contradicted by plaintiffs' own exhibits.").
(M&O at 34—36.) Allah also fails to recognize that the Court followed this discussion with an
alternative analysis, where it concluded that "[ejven if the Court were to accept as true that
Hoffman-Rosenfeld diagnosed that J.R.'s injuries were caused by SBS, it would still be
insufficient to preclude qualified immunity." (M&O at 36.) Accordingly, there is no cause for
reconsideration.
Second, Allah contends that the Court erred when it did not credit the allegations in the
Amended Complaint that Hoffman-Rosenfeld "was acting here, in her public role as a child abuse
investigator as the Medical Director of the Queens Child Advocacy Center," for the purposes of
evaluating immunity under the CPSA,and that she was a"final policy maker,tasked with training,
and provides the final word on findings ofchild abuse for the City ofNew York," for the purposes
of determining municipal liability under Monell v. Department of Social Services. 436 U.S. 658
(1978). (Mot. at 2453-54.) However, the Court was not required to accept as true these legal
conclusions. Ashcroft v. Iqbal. 556 U.S. 662,678(2009)("[T]he tenet that a court must accept as
true all ofthe allegations contained in a complaint is inapplicable to legal conclusions."). Instead,
in conducting its own analysis, the Court determined:(1) that the amended complaint had "not
alleged facts that Hoffman-Rosenfeld directed the investigation or 'determined culpability,'" but
instead "allege[d] that Hoffman-Rosenfeld examined J.R., reported what she saw,and testified" as
to her findings, which did not preclude her ability to claim good-faith immunity under the CPSA,
(M&O at 37-38); and (2) that Hoffinan-Rosenfeld "was not a final policy maker" of Northwell
Health, which was one of several reasons that Allah was unable to succeed on his Monell claim,
10
(M&O at 42-44). Allah does not challenge these analyses directly—and without further argument
about why Iqbal should not have been followed here, the Court sees no need to reconsider them.
Finally, Allah, in opposing qualified immunity, restates his allegation that Hoffman-
Rosenfeld's medical assessment was "far from reasonable" and instead was an "[ijntentionally,
and [k]nowingly and [rjeckless forensic investigation." (Mot. at 2554.) However, Allah has not
sought reconsideration of the Court's preceding and independent conclusion that Allah has
identified no clearly defined rights that Hoffinan-Rosenfeld violated. (M&O at 33.) In the
complaint, Allah alleges that Hoffinan-Rosenfeld "crossed a line fi
"om lawful to unlawful and
unconstitutional conduct"(a conclusory allegation),(TAC If 36), and "did so by utilizing what is
now believed to be, among physicians versed in investigating, assessing and diagnosing child
abuse matters, the 'junk science' of'triad symptoms' leading her, through her intentional use of
such 'junk science', to make false diagnoses of Shaken Baby Syndrome ('SBS') or as currently
denominated Abusive Head Trauma ('AHT')." (TAC ^ 37.) Allah has offered no further
persuasive argument for why the alleged actions, assuming Hoffinan-Rosenfeld made the alleged
diagnosis at all, would violate clearly defined rights, so the Court will not reconsider its conclusion
that they do not. As that conclusion was independently sufficient to support the Court's finding
of qualified immunity, the Court sees no reason to reconsider its subsequent assessment of the
reasonableness of Hoffman-Rosenfeld's examination. (Id ("Secondly, even if the rights at issue
were clearlv defined. ...."(emphasis added)).) Allah offers no further case law to persuade the
Court to reconsider its M&O on this front. Allah only gestures to his own Third Amended
Complaint and alludes to the conclusory allegations in that complaint to imply that the Court had
erred: "Northwell Defendants wrongly allege that (a) Dr. Hoffman Rosenfeld is only a medical
professional who(b)conducted a reasonable investigation. Those are not the facts alleged in the
11
TAG." (Mot. at 2452.) The implied argument would seem to be that Hoffman-Rosenfeld was
more than a medical professional and that she conducted an unreasonable investigation, but both
allegations are legal conclusions that the Court will not credit. Such bare argumentation on
reconsideration has not persuaded the Court to reconsider its finding of qualified immunity
And in any event, Allah's allegations^—^the ones remaining once the Court disregards
Allah's persistent conclusory allegations and allegations contradicted by the medical report''—are
not sufficient to support the argument that Hoffinan-Rosenfeld's actions were objectively
unreasonable. As this Court stated in its original M&O,"[i]n the context ofchild abuse or neglect
proceedings, the Second Circuit has applied a deferential standard, emphasizing that 'courts must
apply the "reasonable basis" test to permit investigators considerable discretion in the abuse
context.' Wilkinson v. Russell. 182 F.3d 89, 106 (2d Cir. 1999)." While Allah seems to argue
that Hoffinan-Rosenfeld's notations in the medical report regarding the limited nature of her
information at the time of making the report evidence an unreasonable failure to acquire further
information, (TAG
102-03), that allegation in fact supports the reasonability of Hoffinan-
Rosenfeld's actions. By noting, at the time of her assessment, that "[djetails of timeline are
unavailable,"(D.E. 89-1 at 1), and "mother unavailable,"^(jd at 2), Hoffman-Rosenfeld provided
" Allah alleged that Hoffman-Rosenfeld "made no efforts to look at a potential diagnosis other than Abusive Head
Trauma(AHT)formerly known as Shaken Baby Syndrome(SBS)." (TAC1105.) However,the Court need not credit
that allegation because it is contradicted by the medical report integral to the complaint. Setting aside whether
Hoffinan-Rosenfeld's description of the CT scan that had been done at St. John's actually constitutes a diagnosis of
Abusive Head Trauma or Shaken Baby Syndrome,the report reflects diagnostic interest in items far afield from that
diagnosis; it discusses finding "skin bruises/contusion of head and pelvic/suprapubic region that have areas of pattern
which are similar implying use ofan implement." (D.E.# 89-1 at 3.) These notes make clear that Hoffman-Rosenfeld
did evaluate for symptoms other than those symptoms that would lead to a diagnosis ofSBS, as the Court is aware of
no argument that patterned pelvic/suprapubic bruising is one of, as Allah puts it, the "markers/factors or
'constellations' of what the prevailing medical science has now and otherwise debunked as indicative of Abusive
Head Trauma(AHT)or as it was previously known as the debunked Shaken Baby Syndrome(SBS),"(TAC If 104).
^ In his Third Amended Complaint, Allah provides quotes in ^ 102 that appear to be slightly misquoting the medical
report (although the Court cannot be entirely sure, as no source citation is provided for the quotations in that
paragraph). The Court views these as quotations from the medical report that have been incorrectly transcribed and,
therefore, is using the accurate language from the medical report,(D.E.# 89-1), to substitute for the misquotations in
1102.
12
important context for any individual reading her assessment in the future who may have more
complete or contradictory information available. Commenting that at the time the "mother [was]
unavailable" in fact caveats Hoffman-Rosenfeld's comment that "there was no explanation for the
injuries,"(id at 1-2), and is a reasonable way to provide context. The alleged harm to Plaintiff
stemmed from Hoffinan-Rosenfeld allegedly diagnosing the injury as "acute," (TAG T| 108),
purportedly narrowing the time frame for the cause of the child's injuries down to a time period
during which the Plaintiff was caring for the child. Hoffman-Rosenfeld's diagnosis ofthe child's
injuries as "acute"—an allegation, the Court should note, which is not supported by any language
the Court can find in the medical report—seems within reason on the facts as Plaintiff has alleged
them: that the child had fallen "recently,"(TAG 83),causing "swelling on the side of[the child's]
head" that his mother observed "[a]t or about 8:30 P.M.,"(TAG T| 82), Le., 13 hours before
Hoffman-Rosenfeld's examination. ("See also TAG f 85 ("[0]n November 10, 2014 [the mother]
observed the bump/swelling on [the child's] head.").) And regardless of whether HoffmanRosenfeld's alleged diagnosis was ultimately the right one, she did nothing to stray outside the
bounds of the wide discretion that the Second Circuit affords investigators in the child abuse
context.
II.
Motion to Stay
On December 26, 2018, the Appellate Division of the Supreme Court of the State of New
York reversed the decision of the Queens County Family Court with respect to its finding that
Allah did not "derivatively abuse[] the child A.A." (D.E. # 120.) Allah subsequently moved to
stay the proceedings in this case, stating that the recent decision by the Appellate Division "does
affect many outstanding issues in this federal case," and that it would be prudent to stay
proceedings until the "underlying family court decision and its appeals conclude." (D.E. # 121.)
13
The Northwell Defendants opposed a stay. The other defendants remaining in this action—
represented by Corporation Counsel for the City of New York—do not oppose a stay. Because
the motion for reconsideration is denied and the Northwell Defendants are dismissed from this
action, the Court grants the stay of proceedings on consent of all remaining parties.
CONCLUSION
For the reasons stated above, Allah's motion for reconsideration is denied. The Northwell
Defendants remain dismissed from this action. Allah's motion for a stay of proceedings is granted
on consent of the remaining parties. The Court directs Allah to provide the Court with an update
every 60 days until the underlying Family Court matter is ultimately resolved.
SO ORDERED.
Dated; December
2019
s/Carol Bagley Amon
Carol Bagle^
United States DisWct Judge
Brooklyn, New York
14
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