Johnson et al v. Myers et al

Filing 107

MEMORANDUM AND ORDER granting 90 Motion for Summary Judgment. For the foregoing reasons, the NUMC Defendants' motion for summary judgment is GRANTED, and the Clerk of the Court is directed to terminate Dr. Robert Barris, Dr. G. St. Victor an d Arthur A. Gianella as Defendants in this action. Additionally, unless counsel makes an appearance on behalf of DJM within thirty (30) days of the date of this Order, his claims will be dismissed by the Court sua sponte without prejudice. Counsel for the NUMC Defendants is ORDERED to serve a copy of this Memorandum and Order on the pro se Plaintiffs and to file proof of service within seven (7) days of the date of this Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an y appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Party G. St. Victor, Robert Barris (MD) and Arthur A. Gianella (President/CEO Nassau University Medical Center) terminated. So Ordered by Judge Joanna Seybert on 12/6/11. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JULIA JOHNSON and DJM,
Plaintiffs,

MEMORANDUM & ORDER
10-CV-1964(JS)(WDW)

-againstEDDIE JAMES MYERS, JR.; DONNA GUARTON,
Psychologist; BENJAMIN MALEWICZ; JODY
WEITZMAN-FISHER; P.O. PATTERSON,
Shield No. 658, 1st Precinct Command;
ROBERT BARRIS, M.D.; DR. G. ST. VICTOR;
NASSAU COUNTY BALDWIN, U.F.S.D.; ARTHUR
A. GIANELLA, President/CEO Nassau
University Medical Center; JOHN CIAPOLI,
Nassau County Attorney; JUSTICE KAREN
MURPHY, Nassau County Supreme Court;
CYRUS R. VANCE, JR., New York County
District Attorney;
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Julia Johnson, pro se
942 Wallace Avenue
Baldwin, NY 11510
For Defendants:
Eddie James Myers, Jr.

Danielle J. Seid, Esq.
Lance D. Simon, Esq.
Law Offices of Anthony A. Capetola
Two Hillside Avenue, Building C
Williston Park, NY 11596

Guarton and Nassau
County Baldwin,
U.F.S.D.

Lewis R. Silverman, Esq.
Christopher James Soverow, Esq.
Rutherford & Christie, LLP
369 Lexington Avenue
New York, NY 10017

Malewicz, WeitzmanFisher, Patterson,
and Ciapoli

Pablo A. Fernandez, Esq.
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

Barris, St. Victor,
and Gianella

Roger B. Lawrence, Esq.
Lawrence, Worden & Rainis, P.C.
225 Broad Hollow Road, Suite 105E
Melville, NY 11747

Cyrus R. Vance, Jr.

Rebecca Rachel Hirschklau, Esq.
New York City Law Department
100 Church Street, Room 2-183
New York, NY 10003

Justice Karen Murphy

No appearances.

SEYBERT, District Judge:
Plaintiff Julia Johnson commenced this action pro se
on

behalf

of

“Plaintiffs”)

herself
against

and
DJM’s

her

infant

father,

son

Eddie

DJM
James

(collectively
Myers,

Jr.;

Donna Guarton and Nassau County Baldwin U.F.S.D. (the “School
District Defendants”); Benjamin Malewicz, Jody Weitzman-Fisher,
Police Officer Patterson and John Ciapoli (the “Law Enforcement
Defendants”); Dr. Robert Barris, Dr. G. St. Victor and Arthur A.
Gianella

(the

“NUMC

Defendants”),

New

York

County

District

Attorney Cyrus R. Vance, Jr., and Nassau County Supreme Court
Justice Karen Murphy.

Presently pending before the Court is the

NUMC Defendants’ motion for summary judgment.

For the reasons

that follow, the NUMC Defendants’ motion is GRANTED.

2

BACKGROUND
I.

Factual Background1
On or about August 20, 2008, Ms. Johnson was admitted

to Nassau University Medical Center’s (“NUMC”) Psychiatric Unit.
She

was

referred

for

a

psychiatric

evaluation

by

Child

Protective Services (“CPS”) and by Mr. Myers after CPS received
an

anonymous

complaint

from

Brookside

concerning the possible neglect of DJM.
hospital,

Drs.

Karine

Grigoryants

and

Elementary

School

Upon arrival at the
Jagjeet

Singh,

staff

psychiatrists at NUMC, examined Ms. Johnson and diagnosed her
with

psychosis,

not

otherwise

specified,

rule

out

delusional

disorder and executed an application for involuntary admission
pursuant to New York Mental Hygiene Law § 9.37(a).2

1

She was

Although the NUMC Defendants provided Plaintiffs with the
required notice to pro se litigants opposing motions for summary
judgment, see Local Civil Rule 56.2, Plaintiffs did not serve a
Local Civil Rule 56.1 counter-statement. The Court therefore
takes as true the facts contained in the NUMC Defendants’ Local
Rule 56.1 Statement that are supported by admissible evidence.
See Local Civ. R. 56.1(c); Baker v. Dorfman, 239 F.3d 415, 422
(2d Cir. 2000); Marshall v. Marshall, No. 08–CV–1420, 2010 WL
5477753, at *1 n.1 (E.D.N.Y. Dec. 7, 2010) (Report and
Recommendation), adopted by 2010 WL 5477152 (E.D.N.Y. Dec. 30,
2010).
2

New York Mental Hygiene Law § 9.37 permits:
[t]he
director
of
a
hospital,
upon
application by a director of community
services or an examining physician duly
designated by him or her, [to] receive and
care for in such hospital as a patient any
person who, in the opinion of the director
3

deemed

a

danger

extremely

to

paranoid,

herself

and

guarded,

others--she

anxious

and

presented

suspicious,

as
she

believed that the police were monitoring her through her burglar
alarm system, she reported that she locked herself and her son
in her son’s bedroom in the middle of the night and made him
push a heavy desk against the door because she was afraid of Mr.
Myers, and she had on a prior occasion attempted suicide.
On August 21, 2011, Defendant Dr. St. Victor examined
Ms. Johnson and diagnosed her with rule out delusional disorder
and schizophrenia, paranoid type.

Dr. St. Victor completed and

executed a certificate stating that Ms. Johnson was in need of
involuntary

care

9.37(a).3

She

pursuant
observed

to
Ms.

New

York

Johnson

Mental
to

paranoid, and she exhibited poor judgment.

be

Hygiene

Law

suspicious

§

and

For example, she was

advised that she had a urinary tract infection but refused to
take

any

medication

to

treat

it

and

she

refused

to

sign

a

of community services or the director’s
designee, has a mental illness for which
immediate inpatient care and treatment in a
hospital is appropriate and which is likely
to result in serious harm to himself or
herself or others.
Upon
arrival
at
the
hospital,
the
need
for
immediate
hospitalization must be confirmed by a staff physician prior to
admission. N.Y. MENTAL HYG. LAW § 9.37(a).
3

A patient may not be involuntarily retained beyond seventy-two
hours unless an additional staff physician certifies the need
for retention. N.Y. MENTAL HYG. LAW § 9.37(a).
4

release

to

allow

NUMC

to

obtain

information

from

doctors regarding her psychiatric condition.
prescribed

Risperdal,

an

antipsychotic

Johnson refused to take it.

her

prior

Dr. St. Victor

medication,

but

Ms.

She was discharged by Dr. St.

Victor on September 2, 2008 because, despite a noticeable degree
of suspiciousness, she was no longer believed to be a danger to
herself or others.

Ms. Johnson advised Dr. St. Victor that she

would not pursue any mental health follow-up treatment nor was
she willing to participate in her discharge planning.
On or about October 8, 2008, Ms. Johnson again was
admitted

involuntarily

to

NUMC’s

Psychiatric

Unit

after

CPS

expressed concern regarding her ability to care for her son.
She was examined by two psychiatrists in the emergency room-Drs. Franz Hinojosa and Josephine Dellarosa--who both diagnosed
her

with

delusional

disorder

and

rule

out

psychosis.

Ms.

Johnson was hostile, evasive and guarded with the doctors and
staff.
2008,

Defendant Dr. Robert Barris examined her on October 10,
but

she

refused

paranoid

and

refused

decrease

her

delusions

speak

to

take

paranoia.

paranoid

to

and

to
the

him.

She

Risperdal

Ms.

Johnson

refused

to

was

prescribed

continued

take

any

extremely

to

to

exhibit

antipsychotic

medication, so on October 31, 20084 NUMC filed a petition in the

4

New York Mental Hygiene Law §§ 9.27, 9.39 provide that a
patient can be retained involuntarily for treatment beyond
5

Supreme

Court

in

Nassau

County

seeking

permission

to

involuntarily treat Ms. Johnson with antipsychotic medication.
Ms. Johnson opposed the petition at a hearing on November 6,
2008 before Defendant Justice Murphy where she was represented
by

counsel.

allowing

That

the

same

day

Justice

administration

of

Murphy

issued

antipsychotic

an

order

medications.

Thereafter, Ms. Johnson began taking the prescribed medications,
although on a few occasions she did not swallow the pills until
she was asked to open her mouth.

She was discharged on December

4, 2008 when her delusions and paranoia subsided significantly.
II.

Procedural Background
Plaintiffs commenced this action pro se on April 23,

2010.

(Docket Entry 1.)

On June 29, 2010, the NUMC Defendants

filed Answers to the Complaint (Docket Entries 18-20), and on
August

30,

2010,

the

Law

Answer (Docket Entry 39).
Vance,

and

Mr.

Myers

all

Enforcement

Defendants

filed

their

The School District Defendants, Mr.
filed

motions

to

dismiss

(Docket

Entries 26, 46, 64), which were granted in part and denied in
part by this Court on February 23, 2011 (Docket Entry 77).

All

claims against the School District Defendants and Mr. Vance were
dismissed with prejudice, and the only claim against Mr. Myers
that survived the motion to dismiss was Plaintiffs’ defamation
fifteen days only if two physicians certify that the patient is
“alleged to be mentally ill and in need of involuntary care and
treatment.”
6

claim.

Mr.

Myers

filed

his

against him on June 1, 2011.

Answer

to

the

remaining

(Docket Entry 96.)

claim

Justice Murphy

has yet to make an appearance in this action.
Pending

before

the

motion for summary judgment.

Court

is

the

NUMC

Defendants’

(Docket Entry 90.)

The Court

notes that no formal discovery has occurred to date.
DISCUSSION
I.

Ms. Johnson’s Representation of DJM
Before turning to the merits of the NUMC Defendants’

summary

judgment

motion,

the

Court

must

first

address

Johnson’s attempt to represent her infant son pro se.

Ms.

Although

“an individual generally has the right to proceed pro se with
respect to his own claims or claims against him personally,”
Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009),
“a

person

may

other’s cause.”
1998).

not

appear

on

another

person’s

behalf

in

the

Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.

The Second Circuit has repeatedly held that this bars

parents from representing their minor children pro se.

See,

e.g., Cheung v. Youth Orchestra Found. of Buffalo, 906 F.2d 59,
61 (2d Cir. 1990); Wenger v. Canastota Cent. Sch. Dist., 146
F.3d 123, 125 (2d Cir. 1998), overruled on other grounds by
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S. Ct.
1994, 167 L. Ed. 2d 904 (2007).
Plaintiff

DJM

shall

be

dismissed
7

Accordingly, the claims of
without

prejudice

unless

counsel enters an appearance on his behalf within thirty (30)
days of the date of this Order.
II.

Motion for Summary Judgment
It

against

the

is

unclear

NUMC

what

Defendants

claims
or

Plaintiffs

what

relief

are

asserting

Plaintiffs

are

seeking, as the Complaint merely narrates Plaintiffs’ version of
the

facts.

However,

the

Court

reads

the

Complaint

very

liberally to assert claims under 42 U.S.C. § 1983 for violations
of the Fourth and Fourteenth Amendments and under New York state
law for assault, battery, false imprisonment, abuse of process,
medical

malpractice,

and

intentional

infliction

of

emotional

distress.
A.

Standard of Review
“Summary judgment is appropriate where there are no

genuine disputes concerning any material facts, and where the
moving

party

is

entitled

to

judgment

as

a

matter

of

law.”

Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortg. Corp. (In re
Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986); FED. R. CIV. P. 56(c)); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986).
“The

burden

of

showing

the

absence

of

any

genuine

dispute as to a material fact rests on the party seeking summary
8

judgment.”

McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.

1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

“In assessing the

record to determine whether there is a genuine issue to be tried
as to any material fact, the court is required to resolve all
ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.”

McLee,

109 F.3d at 134.
“Although the moving party bears the initial burden of
establishing that there are no genuine issues of material fact,
once such a showing is made, the non-movant must ‘set forth
specific

facts

showing

that

there

is

a

trial.’”

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.

2000) (quoting Anderson, 477 U.S. at 256).

genuine

issue

for

Where, as here, the

non-moving is proceeding pro se, the Court should “read [the pro
se

party’s]

them

to

supporting

raise

the

papers

strongest

liberally,
arguments

and . . . interpret
that

they

Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
pro

se

party’s

‘bald

assertion,’

completely

suggest.”

“However, a

unsupported

by

evidence, is not sufficient to overcome a motion for summary
judgment.”

Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y.

1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.
1991)); accord Williams v. Smith, 781 F.2d 319, 323 (2d Cir.
1986)

(“Mere

conclusory

allegations
9

or

denials

will

not

suffice.”

(citation

omitted));

Weinstock,

224

F.3d

at

41

(“[U]nsupported allegations do not create a material issue of
fact.” (citing Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995))).
B.

Constitutional Claims
Plaintiffs’

§

1983

claims

arise

out

of:

(1)

Ms.

Johnson’s involuntary commitment in NUMC’s psychiatric unit from
August 20 to September 3, 2008 and from October 8 to December 5,
2008 and (2) Defendants’ forcibly administering antipsychotic
drugs to Ms. Johnson during her second hospitalization.
Court

will

address

the

claims

arising

out

of

each

The

incident

separately.
1.

Involuntary Commitment

With
Johnson’s

respect

involuntary

to

the

claims

commitment,

arising

out

Plaintiffs’

of

Ms.

Complaint,

liberally construed, asserts violations of due process and the
Fourth

Amendment’s

prohibition

against

unreasonable

seizures.

The NUMC Defendants argue that they are shielded from liability
by the doctrine of qualified immunity.
“Under

qualified

immunity,

The Court agrees.
‘government

officials

performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”
10

Faghri v. Univ.

of Conn., 621 F.3d 92, 96 (2d Cir. 2010) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982)).

“[Q]ualified immunity is available as a matter of law

when

undisputed

the

facts

establish

that

it

was

objectively

reasonable for the defendants to believe that their actions did
not violate clearly established rights.”

Defore v. Premore, 86

F.3d 48, 50 (2d Cir. 1996).
The

NUMC

Defendants

do

not

dispute

that

the

constitutional rights at issue here were clearly established.
Rather, they argue that they are entitled to qualified immunity
because it was objectively reasonable for them to believe that
their decision to involuntarily commit Ms. Johnson was lawful.
Therefore,

the

Court’s

analysis

will

focus

on

the

objective

legal reasonableness of the NUMC Defendants’ actions under the
due process clause and the Fourth Amendment.
a.

Due Process

The Second Circuit has held that New York’s overall
statutory scheme governing involuntary commitments “meet[s] the
minimum facial requirements of due process--both substantive and
procedural.”

Project Release v. Prevost, 722 F.2d 960, 971 (2d

Cir. 1983) (construing N.Y. MENTAL HYG. LAW §§ 9.27, 9.37, 9.39);
see also Olivier v. Robert L. Yeager Mental Health Ctr., 398
F.3d 183, 188 (2d Cir. 2005).

Additionally, the Supreme Court

has held that “a State cannot constitutionally confine without
11

more a nondangerous individual who is capable of surviving in
freedom by himself or with the help of willing and responsible
family members,” O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S.
Ct. 2486, 45 L. Ed. 2d 396 (1975), and New York’s Mental Hygiene
Law has been interpreted to require a finding of dangerousness
prior to involuntary commitment, see Project Release, 722 F.2d
at 973-74; see also Glass v. Mayas, 984 F.2d 55, 57 (2d Cir.
1993).
It
with

the

undisputed

procedures

Therefore,
whether

is

it

“the
was

set

that
forth

availability
objectively

of

the
in

NUMC
the

Mental

qualified

reasonable

Defendants

for

Hygiene

immunity
the

complied
Law.5

turns

on

defendants

to

believe, at the time they examined [Ms. Johnson] and in light of
the

information

dangerous.”

that

they

possessed,

[Ms.

Johnson]

was

Glass, 984 F.2d at 57; see also Mawhirt v. Ahmed, 8

Fed. Appx. 125, 127 (2d Cir. 2001).
was.

that

The Court believes that it

With respect to the first hospitalization, the treating

psychiatrists observed Ms. Johnson to be extremely paranoid and
suspicious.

The paranoia was affecting her son:

5

she woke him

Pursuant to New York Mental Hygiene Law § 9.37, upon being
admitted the NUMC on each occasion, an application for
involuntary admission was executed by two doctors who were in
agreement that she was suffering from paranoid delusions and was
deemed to be a danger to herself and her son. Also, on both
occasions, a third doctor examined her within seventy-two hours
of being admitted and confirmed her diagnosis and need for
involuntary commitment.
12

up in the middle of the night, locked them in his bedroom, and
made him move a heavy desk to block the door.
that

she

had

a

history

suicide in the past.
hospitalization,
schizophrenia,

of

illness

and

had

attempted

Similarly, with respect to the second

Ms.

Johnson

including

doctors and staff.

mental

They also knew

being

again
hostile

showed
and

signs
with

evasive

of
NUMC

She exhibited an inability to take care of

herself in that she refused treatment for a diagnosed urinary
tract infection, and she expressed a total lack of understanding
of

CPS’s

concerns

for

DJM’s

safety.

Accordingly,

the

NUMC

Defendants are shielded by the doctrine of qualified immunity
and are entitled to summary judgment with respect to the § 1983
claims

arising

out

of

Ms.

Johnson’s

involuntary

hospitalizations.
b.

Fourth Amendment

Qualified immunity also shields the NUMC Defendants
from liability for violating the Fourth Amendment’s prohibition
against unreasonable seizures.
that

an

involuntary

“The Fourth Amendment requires

hospitalization

‘may

be

made

only

upon

probable cause, that is, only if there are reasonable grounds
for believing that the person seized is subject to seizure under
the governing legal standard.’”

Glass, 984 F.2d at 58 (quoting

Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1993)).
Second

Circuit

has

held

that

“[t]he
13

standard

for

The

qualified

immunity

in

the

Fourth

reasonableness.”

Amendment

Glass,

984

F.2d

context

at

58

is

(citing

objective
Graham

v.

Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1988)); see also Kraft v. N.Y.C., 696 F. Supp. 2d 403, 415
(S.D.N.Y. 2010) (finding that qualified immunity shielded the
defendant

doctors

from

liability

Amendment

because

they

“had

grounds
under

for

the

believing
[Mental

that

Hygiene

for

violating

probable

plaintiff

cause
was

Law].”).

the

and

reasonable

subject

The

Fourth

seizure

has

Court

to

already

established that the NUMC Defendants’ involuntary commitment of
Ms.

Johnson

was

objectively

reasonable

in

the

due

process

context, it follows that their actions were also objectively
reasonable in the Fourth Amendment context.
1983

claims

arising

hospitalizations

are

out

of

Ms.

barred

by

the

Therefore, all §

Johnson’s
doctrine

involuntary
of

qualified

immunity.
2.
The
claims

Unwanted Administration of Antipsychotic Drugs
NUMC

arising

antipsychotic

Defendants

argue

that

out

of

their

involuntary

drugs

are

barred

by

the

Plaintiffs’

§

1983

administration

Nassau

County

of

Supreme

Court’s Order authorizing NUMC to administer the medication to
Ms. Johnson over her objection.
binding,

and

enforceable

court

The Court agrees.
order

obtained

and

“A valid,
issued

in

accordance with the Mental Hygiene Law precludes relitigation of
14

the

issues

damages.”

determined

therein

in

a

later

action

to

recover

Porter v. Westchester Cnty. Med. Ctr., 252 A.D.2d

518, 519, 675 N.Y.S.2d 364, 365 (2d Dep’t 1998) (citing Kulak v.
N.Y.C., 88 F.3d 63, 71-72 (2d Cir. 1996)); see also Harvey v.
Sawyer, No. 09-CV-0598, 2010 WL 3323665, at *4-5 (N.D.N.Y. July
22,

2010).

Plaintiffs

do

not

dispute

that

the

Order

was

obtained in accordance with the procedures prescribed in the
Mental Hygiene Law--Ms. Johnson had the opportunity to challenge
the proposed treatment at a hearing where she was represented by
counsel.

Plaintiffs are not permitted to relitigate the issues

heard and decided by the state court in this forum.

Thus, the

Court grants summary judgment in favor of the NUMC Defendants.6
C.

State Tort Law Claims
The NUMC Defendants assert that Plaintiffs’ state law

claims must be dismissed as time-barred and for failure to serve

6

The Court also finds that the NUMC Defendants are entitled to
qualified immunity with respect to the claims arising out of Ms.
Johnson’s involuntary medication. See Fisk v. Letterman, 501 F.
Supp. 2d 505, 525 (S.D.N.Y. 2007) (holding that defendant
doctors were shielded from liability for claims arising out of
their decision to medicate plaintiff against her will because
plaintiff’s right to avoid unwanted treatment is not clearly
established:
“[N]either the Supreme Court nor the Second
Circuit has defined the circumstances under which forcible
medication of an involuntarily committed patient is prohibited.”
(quoting Graves v. MidHudson, No. 04-CV-3957, 2006 WL 3103293,
at *6 (E.D.N.Y. Nov. 2, 2006))).
15

a notice of claim under New York General Obligations Law §§ 50i, 50-e.7

The Court agrees.
The applicable statute of limitations for tort claims

against a municipality or its employees in New York is “one year
and ninety days after the happening of the event upon which the
claim is based.”

N.Y. GEN. MUN. LAW § 50-i(1)(c); see also Bosone

v. Cnty. of Suffolk, 274 A.D.2d 532, 533, 712 N.Y.S.2d 128, 131
(2d

Dep’t

2000)

(“Causes

of

action

to

recover

damages

for

intentional torts committed by municipal defendants . . . must
be commenced within the one-year and 90-day period contained in
General Municipal Law § 50-i . . . .”); Castelli v. Nassau Cnty.
Med. Ctr., 244 A.D.2d 379, 379, 664 N.Y.S.2d 94, 95 (2d Dep’t
1997) (upholding dismissal of medical malpractice claim against
NUMC

and

plaintiff’s

treating

physician

General Municipal Law § 50-i).
against

the

NUMC

Defendants

as

time-barred

under

Here, Plaintiffs’ tort claims

all

arise

out

of

Ms.

Johnson’s

hospitalization in NUMC’s psychiatric unit from August 20 to
September 3, 2008 and from October 8 to December 5, 2008.

Thus,

Plaintiffs’ causes of action accrued, at the latest, on December
5, 2008.

Since Plaintiffs did not file their Complaint until

April

2010,

23,

nearly

seven

weeks

beyond

the

one-year

and

ninety day limitations period, these claims are time-barred.
7

The Court notes that these sections of the General Municipal
Law apply to claims against employees of NUMC pursuant to New
York Public Authorities Law § 3415.
16

Additionally,

Plaintiffs

failed

to

comply

with

New

York General Municipal Law § 50-e, which requires a plaintiff to
file a notice of claim prior to commencing an action in tort
against a municipality or one of its employees but no more than
ninety days after the cause of action accrued.

See N.Y. GEN. MUN.

LAW §§ 50-e, 50-i; cf. Warner v. Vill. of Goshen Police Dep’t,
256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003) (“The notice of claim
requirements
pendent

apply

claims

omitted)).

in

equally

to

state

federal

civil

tort

rights

claims

brought

actions.”

as

(citation

Here, Plaintiffs never filed a notice of claim, nor

did they ever request an extension of time to do so.

As such,

Plaintiffs’ state law claims against the NUMC Defendants must be
dismissed.

See Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61-

62, 484 N.Y.S.2d 533, 535, 473 N.E.2d 761, 763 (1984) (“Failure
to comply with provisions requiring notice and presentment of
claims prior to commencement of litigation ordinarily requires
dismissal.” (citation omitted)).
Accordingly, the Court GRANTS summary judgment with
respect

to

Plaintiffs’

state

law

claims

against

the

NUMC

Defendants.
CONCLUSION
For the foregoing reasons, the NUMC Defendants’ motion
for summary judgment is GRANTED, and the Clerk of the Court is
directed to terminate Dr. Robert Barris, Dr. G. St. Victor and
17

Arthur A. Gianella as Defendants in this action.
unless

counsel

makes

an

appearance

on

behalf

Additionally,
of

DJM

within

thirty (30) days of the date of this Order, his claims will be
dismissed by the Court sua sponte without prejudice.
Counsel for the NUMC Defendants is ORDERED to serve a
copy of this Memorandum and Order on the pro se Plaintiffs and
to file proof of service within seven (7) days of the date of
this Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of
an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45, 82

S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December
6 , 2011
Central Islip, NY

18