Macineirghe et al v. County of Suffolk et al
MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 46 Motion for Summary Judgment; For the reasons set forth in this decision, the Court grants in part and denies in part the Hospital Defendants motion for summary judgment. The Court grants the motion and dismisses: (i) the Tenth Cause of Action for common law defamation as against Defendant Benavides; (ii) the Twelfth Cause of Action for common law negligence as against all Hospital Defendants, finding that claim impermis sibly duplicative of the Plaintiffs defamation cause of action; (iii) the Thirteenth and Fourteenth Causes of Action for civil conspiracy and falsification of documents, respectively, as against all Hospital Defendants, finding those claims abandoned ; and (iv) all Causes of Action as against Defendant Southside Hospital. The Court denies the motion to the extent it seeks to dismiss the Tenth Cause of Action for common law defamation as against Defendant Gonzalez, and to the extent it seeks to di smiss all claims as against Defendant NSLIJ. In this regard, the Court exercises its discretion to consider the Plaintiffs theory of vicarious liability against Defendant NSLIJ and deems the Complaint amended to assert such a claim. However, in light of the Courts rulings, the potential vicarious liability that may attach to NSLIJ is limited to damages resulting from Gonzalezs allegedly defamatory statements. (Coleman, Laurie) (Main Document 68 replaced on 7/21/2015) (Coleman, Laurie). Modified on 7/21/2015 to correct a clerical error; The last paragraph of pg #39 should state "for common law defamation as against Defendant Gonzalez" not Benavides as previously indicated; and to correct a typographical error in the name Gonzalez. This Decision remains the same in all other respects. (Coleman, Laurie).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BRIAN MACINEIRGHE, IAN
MACINEIRGHE, and TOMAS
DECISION AND ORDER
-againstTHE COUNTY OF SUFFOLK, SUFFOLK
COUNTY POLICE DEPARTMENT,
SUFFOLK COUNTY SHERIFF’S
DEPARTMENT, JONATHAN C. ALLEN,
JAMEL BOSWELL, PETER HANSEN,
CHRISTOPHER ANSKAT, CRAIG
KNUDSEN, NORTH SHORE LIJ,
SOUTHSIDE HOSPITAL, CESAR GREG
BENAVIDES and MAYOVEZ GONZALEZ,
KILGANNON & KILGANNON, LLP
Attorneys for the Plaintiffs
1551 Kellum Place
Mineola, NY 11530
By: Timothy Kilgannon, Esq., Of Counsel
OFFICE OF THE SUFFOLK COUNTY ATTORNEY
Attorneys for Defendants County of Suffolk, Suffolk County Police Department,
Suffolk County Sheriff’s Department, Jonathan C. Allen, Jamel Boswell, Peter
Hansen, Christopher Anskat, and Craig Knudsen
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
By: Jessica M. Spencer, Assistant County Attorney
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants North Shore Long Island Jewish Health System, Inc.,
Southside Hospital, Cesar Gregorio Benavides, and Mayovez Gonzalez
150 East 42nd Street
New York, NY 10017
By: Aviva Stein, Esq.,
Larry Lum, Esq., Of Counsel
SPATT, District Judge:
On March 21, 2013, the Plaintiffs Brian Macineirghe (“Brian”), Ian
Macineirghe (“Ian”), and Tomas Macineirghe (“Tomas”, collectively, the “Plaintiffs”
or “Macineirghes”) commenced this action against two groups of Defendants. The
first group, referred to as the “County Defendants,” includes the County of Suffolk
(the “County”), the Suffolk County Police Department (the “SCPD”), the Suffolk
County Sheriff’s Department (the “SCSD”), and several individual Suffolk County
police officers, namely, Defendants Allen, Boswell, Hansen, Gambino, Diffley,
Bendetti, Anskat, and Knudsen.
The second group of Defendants, referred to herein as the “Hospital
Defendants,” includes North Shore Long Island Jewish Health System Inc. s/h/a
North Shore LIJ (“NSLIJ”), Southside Hospital (the “Hospital”), Cesar Gregorio
Benavides s/h/a Cesar Greg Benavides (“Benavides”), and Miguel Gonzalez s/h/a
Mayovez Gonzalez (“Gonzalez”).
The Complaint alleges violations of 42 U.S.C. §§ 1983 and 1985, the New
York State Constitution, and various common law causes of action, all arising
primarily from an altercation that took place on March 23, 2012 between the
Plaintiff Brian Macineirghe and members of the SCPD.
On April 16 and 17, and July 30, 2013, all named Defendants interposed
Answers to the Complaint and the action proceeded to discovery.
On July 9, 2014, the Hospital Defendants requested a pre-motion conference
and, in accordance with Local Civil Rule 56.1 and this Court’s Individual Rules,
filed a statement of undisputed material facts, together with the Plaintiffs’
On October 6, 2014, the action was voluntarily dismissed as against
individual County Defendants Gambino, Diffley, and Bendetti.
On May 6, 2013, the Hospital Defendants filed the instant motion pursuant
to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56, for an Order granting
summary judgment dismissing all of the Plaintiffs’ claims against them.
The Plaintiffs oppose the Hospital Defendants’ motion.
Defendants do not join in the motion or otherwise take a position with respect to the
For the reasons set forth below, the motion is granted in part and denied in
Except as otherwise noted, the following facts are not in dispute and are
construed in favor of the Plaintiffs.
The Plaintiffs are individuals who, at all relevant times, resided in East Islip,
New York. Brian and Ian are brothers; Tomas is their father.
The County Defendants consist of a municipality – Suffolk County – its police
and sheriff’s departments, and individual police officers employed by the County.
Defendant Southside Hospital is a private hospital located in Bay Shore, New
York, and is a part of the larger NSLIJ Health System. At the time of the events
giving rise to the Complaint, Benavides and Gonzalez were employed by Defendant
NSLIJ as a nurse and security officer, respectively.
The Altercation Between Brian Macineirghe and the Police
The events of March 23, 2012 begin at the Macineirghes’s home, where an
altercation between the Plaintiffs and certain individual police officer Defendants
occurred. Although the facts surrounding the altercation are not in issue on the
present motion, a brief recitation of the Plaintiffs’ allegations, as to which the
moving Defendants deny knowledge or information, is useful.
On March 23, 2012, Brian Macineirghe was allegedly waxing his car at the
Plaintiffs’ home at 27 Irish Lane in East Islip, New York (the “Premises”).
members of the SCPD, including Defendants Allen and
Boswell, allegedly entered upon the Premises without a warrant and threatened,
harassed, attacked, punched and kicked Brian for no reason.
The officers eventually handcuffed Brian, placed him under arrest, and drove
him away in a squad car. Ian and Tomas allegedly asked the officers why Brian
was being placed under arrest, but received no answer.
They later learned that Brian had been taken by the officers to Southside
Hospital, where they also traveled. Tomas and Ian entered a yellow Ford Escape
SUV, along with Tomas’s third son, Ross Macineirghe (“Ross”), and family friend
Joseph Drago (“Drago”), and drove to the Hospital. Before leaving, Ian took his
It is at this point that the Hospital Defendants enter the incident.
The Events at Southside Hospital
The following facts are drawn primarily from the parties’ Rule 56.1
Statements and are, again, construed in the Plaintiffs’ favor.
Tomas and Ian Macineirghe arrived at Southside Hospital and attempted to
enter through the emergency room entrance, but were prevented from doing so by a
security guard. Both Ian and Tomas testified that the security guard stated that
Brian did not want to see them. See Tomas Dep. T. 46; Ian Dep. T. 82. At that
point, the men traveled to the hospital’s main entrance, where a receptionist
provided them with visitor passes.
Ross and Drago remained in the car outside the Hospital during this time.
There is no evidence that either of them entered the Hospital during the events that
occurred that day.
Tomas and Ian then walked through the hospital to the emergency room
area, where they saw Brian surrounded by a group of police officers. During this
time, Ian carried his video camera, but had not begun filming.
Upon entering the emergency room area, Tomas exchanged words with the
officers. The particular details of the exchange are unclear. Tomas claims he made
a comment along the lines of, “it takes all you guys to guard a guy waxing his car?”
to which one of the officers stated, “[y]ou better get out of here or we’ll arrest you.”
See Tomas Dep. T. 61-62. Ian recalls his father asking them “what was going on,”
to which Defendant Allen stated “[d]on’t make things worse than it already is.” See
Ian Dep. T. 102.
In any event, at about this point, Ian began videotaping.
opposition papers, the Plaintiffs provided the Court with a CD containing a twominute video clip taken by Ian (the “Video”).
The Video shows at least seven individuals, at least five of whom are in police
uniforms, guarding Brian, who is seated behind a desk several feet high. When the
camera focuses on Brian, a bleeding laceration over his right eye is clearly visible.
The parties do not materially dispute that, at some point, hospital personnel
instructed Ian that videotaping is prohibited inside the Hospital. E.g. Benavides
Dep. T. at 28. According to Defendant Benavides, Ian was videotaping patients in
the emergency room, as well as doctors and nurses, which is prohibited by HIPAA
In this regard, the Court notes that the Video does not appear to show any
patients other than Brian, and while two individuals are shown in the Video not
wearing police uniforms, it is not clear whether those individuals are doctors or
It is also undisputed that police and hospital personnel asked Tomas and Ian
to leave the Hospital. In particular, Ian testified that a nurse and security guard,
both of whom he was unable to identify, so instructed him.
Defendant Benavides and Defendant Gonzalez deny directing Tomas and Ian to
leave, and no such activity is clearly visible or audible on the Video.
Nevertheless, at some point during this exchange, Tomas instructed Ian to
run away. Ian testified that he complied, but left the Hospital in a “brisk walk,” not
a run. See Ian Dep. T. 109. The Video demonstrates this fact — approximately
twenty-seven seconds into the footage, it appears Ian hid the still-rolling camera
underneath his clothes and quickly left the Hospital. This is consistent with Ian’s
testimony that upon being told not to videotape inside the Hospital, he placed it in
his pocket, without being sure whether he had turned it off. See Ian Dep. T. 211. In
the Video, Tomas can be heard yelling “run.”
Regarding his motivation for telling Ian to run away during this exchange,
Tomas testified: “After seeing what the police did to Brian, I said to myself, if they
have some sort of change of heart, they are going to beat the crap out of [Ian] too.”
See Tomas Dep. T. at 72-73. Ian testified similarly: “I had the video camera, that’s
And I would prefer to keep that because that’s important to me.
wouldn’t want to be in the same position [as Brian] having a cut face or anything
else injured on my body.” See Ian Dep. T. 108.
Visible footage resumes approximately one minute and five seconds into the
Video in the Hospital parking lot, where the next series of events took place.
However, none of the ensuing relevant events were captured on film.
The Arrest of Tomas
Tomas testified that after Ian left the Hospital in a run or brisk walk, he also
left. Defendant Boswell testified that he followed Tomas out of the Hospital and
instructed him to “stop running,” although he later clarified that Tomas was not
running and actually was walking with a limp. Defendant Benavides also recalled
police officers instructing Tomas and Ian to stop running. Boswell testified that his
purpose in following Tomas was to interview him concerning his desire to remain at
the Hospital after police and personnel had told him to leave.
When Tomas reached the parking lot, he looked around for the yellow Ford
Escape SUV, which he believed Ian, Ross, and Drago occupied. Eventually, he saw
the vehicle and began waving to attract the men’s attention, but, apparently, they
failed to notice him.
As Tomas walked through the parking lot with Defendant Boswell behind,
Defendant Knudsen’s squad car was parked ahead of them. Knudsen was inside
the car, and was about to follow the yellow Ford Escape SUV, which Ian was
believed to occupy.
Tomas claims not to have noticed any police around him as he walked
through the parking lot. Nevertheless, as he approached Knudsen’s squad car, his
“foot gave way” and he fell down. See Tomas Dep. T. at 80. Tomas testified that
this happens to him regularly, although his testimony is unclear as to the reason it
happens. Ian also testified that he has witnessed this happen to his father in the
Boswell also testified that Tomas “just went down,” but believes that Tomas
deliberately fell down directly in the vicinity of Knudsen’s squad car to prevent him
from following Ian. See Boswell Dep. T. at 88. This is consistent with Knudsen’s
testimony, namely, that he got into his squad car with the intention of following the
car that Ian occupied, and when he attempted to put the car in motion, he heard a
“loud bang” or “thud” on the rear of the car that sounded like “someone hitting [or]
slapping the side of the vehicle.” See Knudsen Dep. T. at 42-43. When he stopped
the vehicle, he saw Tomas on the ground yelling.
This is also consistent with Benavides’s testimony that Tomas was “blocking”
Knudsen’s squad car from following the yellow Ford Escape SUV that contained Ian
and that Tomas “threw himself on the ground.” See Benavides Dep. T. at 55.
As noted above, Tomas claims not to have observed any police around him as
he walked through the parking lot, and claims that Knudsen’s squad car simply
appeared beside him after he fell. He states that he stayed on the ground for only a
second before lifting himself up. Defendant Boswell disputes this, claiming that
Tomas was on the ground for approximately 30 seconds.
Tomas also testified that when he got back on his feet, he stated to the officer
operating the squad car, the Defendant Knudsen, that he was okay. In particular,
Tomas testified that he said, “I just fell down. Something like that.
okay . . . Meaning, there was nothing going on. I was fine.” See Tomas Dep. T. at
Boswell disputes this, testifying that Tomas said “oh, he ran over my foot, my
foot, my foot.” See Boswell Dep. T. at 91. Knudsen also recalls Tomas yelling that
his foot had been run over. See Knudsen Dep. T. at 45. However, when Boswell
asked Tomas if he was okay, Tomas explained that he actually had a prior injury
and that he “just kind of fell.” He also stated that Knudsen had not driven over his
foot. See id. Benavides recalled Tomas saying to Knudsen, “you hit me with your
car.” See Benavides Dep. T. at 58.
According to Tomas, Defendant Hansen then directed the officers to “arrest
that man,” referring to Tomas. See Tomas Dep. T. at 87. Boswell disputes this as
well. Boswell testified that upon witnessing Tomas “throw [him]self in front of a
police car when [its] trying to leave,” he independently decided that Tomas had
obstructed governmental administration. See Boswell Dep. T. at 94-95. According
to Boswell, Defendant Hansen never instructed him to arrest Tomas.
Tomas was handcuffed in the Hospital parking lot and transported by
Defendant Boswell to the police precinct. Tomas was detained and charged with
obstructing governmental administration and criminal trespass.
See Pl. R. 56.1
Stmt. ¶ 3. Attorney Jim Fallon posted Tomas’s bail and he was released the same
The Arrest of Ian
Ian testified that he left the Hospital without his father and walked through
the parking lot in order to find his brother, Ross. As he walked, he saw no one
following him. Defendant Knudsen disputes this, claiming that he, Boswell, and
Hansen followed closely behind. Defendant Benavides, a Hospital employee, also
disputes this, contending that when Ian ran out of the hospital, the police officers
chased after him.
Eventually, Ian found Ross and Drago walking towards the Hospital and
informed them that they “ha[d] to get out of there . . . because [he] had the video
See Ian Dep. T. 114-15. The three men then returned to the yellow Ford
Escape SUV and began to drive away.
Defendant Knudsen testified that he observed Ian get into a vehicle, at which
time he got into his own squad car with the intention of following and stopping the
car in which Ian was traveling. Knudsen was prevented from immediately exiting
the parking lot for this purpose because of Tomas’s mysterious fall, as described
As Ian, Ross, and Drago were driving away from the Hospital, Defendant
Knudsen located them and activated his emergency lights, directing them to pull
over. Ian did not specifically identify the officer making the traffic stop as Knudsen,
but that identification is now undisputed.
According to Ian’s testimony, Knudsen instructed Ross to turn the car’s motor
off and then requested identification from all three men. Ian, Ross, and Drago
complied, supplying the officer with identification, which he took back to the squad
While Knudsen was reviewing the men’s identification, a second squad car
arrived. Ian testified that the second officer, who is not clearly identified by the
parties, approached their car and instructed Ross to hand him the car keys. Ross
complied and the officer threw the keys onto the hood of the car. The second officer
then stood and watched the car; Ian believed this was to ensure that the men did
not leave the vehicle.
The officers conferred for several minutes. Eventually, Knudsen approached
the car door and removed Ian. Knudsen directed Ian to place his hands behind his
back; handcuffed him; and then lowered him to a seated position on the side of the
Ian testified that he asked whether he was being arrested and Knudsen
responded “no, not yet.” See Ian Dep. T. 130.
Knudsen then gave the car keys back to Ross, placed Ian in the squad car,
and drove him to a police precinct. Ian was detained and charged with criminal
trespass in the third degree. See Pl. R. 56.1 Stmt. ¶ 3. Drago posted Ian’s bail and
he was released the same day.
It is undisputed that all criminal charges were dismissed by the County as
against all the Plaintiffs.
The Moving Defendants’ Statements
The principal basis for the Plaintiffs’ claims against the Hospital Defendants
is a series of statements that Defendants Benavides and Gonzalez made in the
immediate aftermath of the events outlined above.
Defendant Miguel Gonzalez
Defendant Knudsen testified that, after he arrested Ian, Defendant Hansen,
who is a Sergeant, and thus, a higher-ranking officer, directed him to obtain a
witness statement from Gonzalez, a Hospital security officer.
Defendant Knudsen complied and secured two Burglary and Criminal
Trespass Affidavits, which were signed by Gonzalez. The first, relating to Tomas,
states, in relevant part, that:
“On or about 1425 hrs [2:25 P.M.] 3/23/12, I was the owner, lawful
custodian, or licensed to occupy a building . . . , namely Southside
Hospital Town of Islip, County of Suffolk. I did not give Macineirghe,
Tomas license or permission to enter or remain therein and no
privilege existed for such entry or remaining.
See Pl. Summ. J. Mot., Ex. “11”. An identical affidavit was created and signed by
Gonzalez relating to Ian. See id. Ex. “12.”
Defendant Knudsen testified that he prepared the statements after speaking
with Gonzalez, and that Gonzalez confirmed the accuracy of the information
contained in the statements before signing them. In particular, Knudsen testified
that he confirmed that Gonzalez was present for the events involving Tomas and
Ian inside Southside Hospital, and was, in fact, one of the individuals who had
asked Tomas and Ian to leave the Hospital.
Knudsen confirmed that the
statements signed by Gonzalez were used in connection with Tomas’s arrest by
Knudsen’s testimony in this regard is contradicted by Gonzalez’s version of
Gonzalez testified that on the date in question, the usual Hospital
security supervisor called in sick and he was made temporary supervisor for the
day. He was scheduled to work the 4:00 P.M.-to-midnight shift, and did not arrive to
work earlier than 4:00 P.M.
At some point, Gonzalez received a call from another security officer on his
two-way radio requesting his assistance in responding to a disturbance in the
emergency room. However, when he arrived at the scene, Gonzalez did not observe
any disturbance. At his deposition he claimed not to recall any police officers being
present in the emergency room when he arrived and denied having spoken to any.
With respect to the Burglary and Criminal Trespass Affidavits, Gonzalez
admitted having signed them, but confirmed that he did not write them, and did not
recall who did. Gonzalez testified that he did not recall seeing Tomas or Ian on the
date of the incident and did not speak to either of them.
As noted, Gonzalez
maintains that he was at home and not at the Hospital at 2:25 P.M., the time
indicated in the affidavits. Also, he denied being a lawful custodian of Southside
Hospital at that time.
Gonzalez testified that he had no understanding before, during, or after he
signed the affidavits concerning the purpose for which they would be used.
Cesar Gregorio Benavides
On March 23, 2012, Defendant Benavides, a Hospital nurse, provided
Defendant Anskat, an individual police officer Defendant in this case, with a
witness statement based on his observations of the relevant events. He stated as
I work in the emergency room at Southside Hospital as a registered
nurse. I was working the 7 A.M. to 7:30 P.M. shift and at approximately
2:26 P.M. I saw two men arguing with police by the “BP” chair area. I
noticed that the younger of the two individuals, the one wearing the
orange shirt, was video taping [sic] the doctors, officers, and patients in
the area. I told that person “Sir you can not [sic] record video in the
hospital, please turn off the camera and delete the recording.” He put
the camera in his pocket and continued to argue with the officers. The
older of the two individuals told him “Get out of here, run!” In an
attempt to evade police and security the younger individual ran away
and got into a yellow SUV in the parking lot. The older individual
then blocked the police vehicle from attempting to chase the yellow
SUV. I then saw the older man throw himself to the ground in an
attempt to fake being struck by a police car. However, the police car
never made contact with the older individual. I heard the older man
say “I never said that the car hit my foot!” Video taping [sic] in the
hospital is against HIPAA laws.
See Pl. Summ. J. Mot., Ex. “13”.
Benavides testified that a police officer he could not identify wrote this
statement outside of his presence, and he signed it. Benavides further testified that
the portion of his statement relating to Ian attempting to evade the police was, in
fact, his opinion.
The parties point to nothing in the record concerning the purpose, if any, for
which Benavides’s statement was used,
or whether Benavides had any
understanding as to its potential use.
Based on the events outlined above, the Plaintiffs commenced an action in
this Court asserting claims against the County Defendants under 42 U.S.C. §§ 1983
and 1985, the New York State Constitution, and various common law causes of
In addition the Plaintiffs assert the following common law causes of action
against the Hospital Defendants, which are relevant to the instant motion: (i) libel
and slander; (ii) negligence; (iii) conspiracy; and (iv) falsification of documents. In
addition, though not specifically pled as such, the Plaintiffs seek to impute vicarious
liability to the Defendant NSLIJ for the allegedly tortious acts of its employees.
On October 6, 2014, the Hospital Defendants filed the instant motion seeking
summary judgment dismissing all four of the Plaintiffs’ claims against them. In
particular, the contentions are as follows: (i) the Tenth Cause of Action for common
law libel and slander should be dismissed because the statements at issue were
either truthful or opinions, and thus not actionable as a matter of law; (ii) the
Twelfth Cause of Action for common law negligence should be dismissed because
the Hospital Defendants owed no duty of care to the Plaintiffs as a matter of law;
(iii) the Thirteenth Cause of Action for common law civil conspiracy should be
dismissed because New York does not recognize such a claim; and (iv) the
Fourteenth Cause of Action for falsification of a document should be dismissed
because no such cause of action exists at common law and the relevant New York
and federal statutes do not apply under these circumstances.
The Plaintiffs oppose the motion in its entirety.
The Legal Standards
The standard for granting summary judgment under Fed. R. Civ. P. 56 is a
familiar one. The Court may appropriately grant summary judgment only when,
construing the evidence in the light most favorable to the non-moving party, “there
is no genuine dispute as to any material fact and the movant is entitled to judgment
a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of fact exists when there is
sufficient evidence on which a jury could reasonably find for the non-movant. See
Haskin v. United States, 10-cv-5089, 2015 U.S. Dist. LEXIS 84762, at *19 (E.D.N.Y.
June 30, 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Put differently, no genuine issue of fact exists
where the record, taken as a whole, could not lead a rational trier of fact to find for
See Figueroa v. Johnson, 11-cv-2087, 2015 U.S. Dist. LEXIS
67371, at *10 (E.D.N.Y. May 22, 2015) (Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
263 F.3d 208, 212 (2d Cir. 2001)).
On a motion for summary judgment, the evidence of the non-movant is to be
believed; all permissible inferences are to be drawn in his favor; and the Court must
disregard all evidence favorable to the moving party that the jury is not required to
believe. See Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Anderson, 477 U.S. at 255; Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 151, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). “ ‘In sum, summary judgment
is proper only when, with all permissible inferences and credibility questions
resolved in favor of the party against whom judgment is sought, there can be but
one reasonable conclusion as to the verdict.’ ” Id. (quoting Kaytor v. Electric Boat
Corp., 609 F.3d 537, 546 (2d Cir. 2010)).
The moving party meets this burden by pointing to admissible evidence in
the record, including depositions, documents, affidavits, or other materials, which
demonstrate the absence of a genuine issue of material fact. See Figueroa, 2015
U.S. Dist. LEXIS 67371, at *10-*11 (citing Fed. R. Civ. P. 56(c)(1)(A), (2)). A fact is
material if it might affect the outcome of the suit under the governing law. See
Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygeine, 746 F.3d 538, 544
(2d Cir. 2014) (quoting Anderson, 477 U.S. at 248).
In this regard, “[t]he ‘mere existence of a scintilla of evidence is not sufficient
to defeat summary judgment; there must be evidence on which the jury could
reasonably find for the plaintiff.’ ” Haskin, 2015 U.S. Dist. LEXIS 84762, at *19
(quoting Anderson, 477 U.S. at 252). However, “[t]he role of the court is not ‘to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.’ ” Id. (quoting Redd, 678 F.3d at 173-74).
As to Whether Summary Judgment is Warranted on the Plaintiffs’
Claim for Libel and Slander
The Plaintiffs’ common law defamation claim is premised upon three written
statements: (i) Defendant Gonzalez’s Burglary and Criminal Trespass Affidavit
relating to Tomas; (ii) Gonzalez’s Burglary and Criminal Trespass Affidavit relating
to Ian; and (iii) Defendant Benavides’s witness statement. See Pl. R. 56.1 Stmt. ¶ 5.
Initially, to the extent the Plaintiffs’ defamation cause of action includes a
claim for slander, that claim is denied as each of the implicated statements exists in
written form. See Albert v. Loksen, 239 F.3d 256 (2d Cir. 2001) (“Generally, spoken
defamatory words are slander; written defamatory words are libel”). Under New
York law, this is true even though the Defendants orally described their accounts to
police before ultimately being reduced to writing.
See Benedict v. Tarnow &
Juvelier, LLP, 2013 NY Slip Op 33508(U), 2013 N.Y. Misc. LEXIS 6347, at *5-*6
(Sup. Ct. N.Y. Cty. 2013) (noting that where a defamatory statement is oral but is
expected by the speaker to be reduced to writing and published, and is subsequently
communicated in written form, such a statement constitutes a libel (quoting Park
Knoll Assoc. v. Schmidt, 89 A.D.2d 164, 168, 454 N.Y.S.2d 901 (2d Dep’t 1982), rev’d
on other grounds, 59 N.Y.2d 205, 464 N.Y.S.2d 424 (1983))). Thus, the Plaintiffs’
claim in this regard sounds in libel.
In determining whether summary judgment is appropriate as to the
Plaintiffs’ libel claim, the Court is guided by the following principles.
“To establish libel under New York law, a plaintiff must prove five elements:
‘(1) a written defamatory factual statement [of and] concerning the plaintiff; (2)
publication to a third party; (3) fault [i.e., negligence on the part of the speaker]; (4)
falsity of the defamatory statement; and (5) special damages or per se
actionability.’ ” Sorvillo v. St. Francis Preparatory Sch., 14-cv-3417, 2015 U.S. App.
LEXIS 6424, at *2-*3 (2d Cir. Apr. 20, 2015) (quoting Chau v. Lewis, 771 F.3d 118,
126-27 (2d Cir. 2014)); see Celle v. Filipino Reporter Enters., Inc., 209 F.3d 163, 176
(2d Cir. 2000) (same); Naples v. Stefanelli, 972 F. Supp. 2d 373, 400 (E.D.N.Y. 2013)
(citing Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir. 2000) (same).
As to the first element, New York law defines “defamatory” as a statement
that threatens to expose an individual to public hatred, shame, contempt, ridicule,
and deprives one of confidence and friendly intercourse in society. See Mitre Sports
Int’l Ltd. v. HBO, Inc., 22 F. Supp. 3d 240, 252 (S.D.N.Y. 2014) (quoting Celle, 209
F.3d at 176). “Whether a particular statement is defamatory is a matter of law to
be determined by the court in the first instance.” Id. (quoting Celle, 209 F.3d at
177). In this regard, if the allegedly defamatory words are susceptible to multiple
meanings, some of which are not defamatory, a fact issue is presented as to how
those words are to be understood. See id. (citing Karedes v. Ackerly Grp., Inc., 423
F.3d 107, 113 (2d Cir. 2005)).
As to the second element, “[p]ublication occurs when the libelous words are
read ‘by someone other than the person libeled and the person making the
charges.’ ” Van-Go Transp. Co. v. New York City Bd. of Educ., 971 F. Supp. 90, 102
(E.D.N.Y. 1997) (quoting Fedrizzi v. Washingtonville Cent. Sch. Dist., 204 A.D.2d
267, 268, 611 N.Y.S.2d 584 (2d Dep’t 1994)); see Jain v. Sec. Indus. & Fin. Mkts.
Ass’n, 08-cv-6463, 2009 U.S. Dist. LEXIS 91206, at *18 (S.D.N.Y. Sept. 28, 2009).
As to the third element, the Plaintiff’s burden of proof varies depending on
whether he is a public or private party. See DiBella v. Hopkins, 403 F.3d 102 (2d
Cir. 2005), cert. denied, 546 U.S. 939, 126 S. Ct. 428, 163 L. Ed. 2d 326 (2005). As
neither party contends that any of the Plaintiffs is a public figure, the appropriate
level of fault to be proven is negligence. See Lawlor v. Gallagher Presidents’ Report,
Inc., 394 F. Supp. 721, 732 n.19 (S.D.N.Y. 1975) (collecting New York cases adopting
a negligence standard where private plaintiffs, not involved in a public controversy,
seeks to recover for publication of a defamatory falsehood about him); see also Pirre
v. Printing Developments, Inc., 468 F. Supp. 1028, 1040 n.12 (S.D.N.Y. 1979), aff’d,
614 F.2d 1290 (2d Cir. 1979).
As to the fourth element, “[t]ruth – even substantial truth – is, of course, the
ultimate defense to defamation.”
Bloom v. Fox News, 528 F. Supp. 2d 69, 75
(E.D.N.Y. 2007) (collecting cases); see Guccione v. Hustler Magazine, Inc., 800 F.2d
298 (2d Cir. 1986) (noting that “truth is an absolute, unqualified defense to a civil
defamation action” and statements that are even substantially true require
dismissal as a matter of law “regardless of any impact the statement might have on
[an individual]’s reputation” (internal citations omitted)).
That being said, under limited circumstances, technically true statements
that have impliedly defamatory effects will not find shelter from a libel claim.
Indeed, “ ‘[d]efamation by implication is premised not on direct statements but on
false suggestions, impressions and implications arising from otherwise truthful
statements.’ ” Mitre Sports, 22 F. Supp. 3d at 253 (quoting Armstrong v. Simon &
Schuster, Inc., 85 N.Y.2d 373, 380-81, 625 N.Y.S.2d 477 (1995); Krepps v. Reiner,
588 F. Supp. 2d 471, 483 (S.D.N.Y. 2008)).
Defamation by implication “occurs
where ‘[a] combination of individual statements which in themselves may not be
defamatory might lead the reader to draw an inference that is damaging to the
Sorvillo, 2015 U.S. App. LEXIS 6424, at *3-*4 (quoting Herbert v.
Lando, 781 F.2d 298, 307 (2d Cir. 1986)).
A plaintiff alleging defamation by
implication typically has to show that the defendants intended such implication
when making the statement at issue. See Ello v. Singh, 531 F. Supp. 2d 552, 580
In addition, it is well-settled that expressions of pure opinion are not
actionable under New York law. See Celle, 209 F.3d at 178 (citing Flamm v. Am.
Assoc. of Univ. Women, 201 F.3d 144, 147-48 (2d Cir. 2000)). The standard for
determining whether a statement is a protected opinion is whether, from the
perspective of an ordinary reader, the words imply the existence of undisclosed facts
justifying the opinion. See id. (internal citations and quotation marks omitted)).
For example, an opinion is not protected if it implies “that the speaker knows
certain facts, unknown to his audience, which support his opinion and are
detrimental to the person about whom he is speaking.” Steinhilber v. Alphonse, 68
N.Y.2d 283, 290, 508 N.Y.S.2d 901 (1986) (citing Rand v. New York Times Co., 75
A.D.2d 417, 422, 430 N.Y.S.2d 271 (1980)). The Court must decide, as a matter of
law, whether the challenged statements are opinion. See Celle, 209 F.3d at 178
(citing Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943
Finally, as to the fifth element, “ ‘[s]pecial damages consist of the loss of
something having economic or pecuniary value which must flow directly from the
injury to reputation caused by the defamation.’ ” Thorsen v. Sons of Norway, 996
F. Supp. 2d 143, 164 (E.D.N.Y. 2014) (quoting Celle, 209 F.3d at 179).
injuries such as “dignitary harm” or mere “injury to reputation” do not constitute
special damages. Id. at 165.
Here, to avoid confusion, the Court will consider the statements at issue
separately, first examining the two Burglary and Criminal Trespass Affidavits by
Gonzalez, as they are materially indistinguishable from one another, and then
turning to the written witness statement given by Defendant Benavides.
As to Whether Summary Judgment is Appropriate Regarding
the Burglary and Criminal Trespass Affidavits by Defendant
Gonzalez’s affidavits contain the following factual assertions: (i) on March
23, 2012, at or about 2:25
he was the owner, lawful custodian, or licensed
occupant of Southside Hospital; (ii) he did not give Tomas or Ian Macineirghe
license or permission to enter or remain at the Hospital; and (iii) no privilege
existed for their entry or remaining. With respect to these statements, the Hospital
Defendants contend that the first and the fourth elements of a libel claim – namely,
defamatory statement of and concerning the plaintiff, and falsity – have not been
satisfied, requiring dismissal of the Plaintiffs’ Tenth Cause of Action as against
In this regard, the Hospital Defendants contend that Gonzalez’s statements
were not “defamatory” as a matter of law, because there is no record evidence
suggesting that the Plaintiffs have been subjected to the kind of hatred, contempt,
or ridicule that typifies a defamatory statement.
In addition, the Hospital
Defendants assert that each factual component of Gonzalez’s statements is true,
and thus the statements are not actionable as a matter of law.
The Court notes that the Hospital Defendants assert no argument in support
of summary judgment relating to any of the other elements of the Plaintiffs’ libel
claim, namely, publication to a third party, fault, or special damages. To the extent
the moving Defendants fail to address these remaining elements, the Court
similarly need not address them.
For their part, the Plaintiffs maintain that Gonzalez’s statements are
defamatory inasmuch as they suggest Tomas and Ian engaged in criminal activity
by illegally entering and remaining on Hospital property. Indeed, they assert that
there is no evidence that Gonzalez’s permission was required to lawfully enter the
Hospital. For this reason, the Plaintiffs dispute the truthfulness of the statements
and contend that, even if technically true, they are nevertheless impliedly
defamatory and thus actionable.
Applying the standards outlined above, the Court concludes that genuine
issues of material fact exist with respect to both the defamatory character and the
truthfulness of Gonzalez’s statements, and summary judgment as to this portion of
the Plaintiffs’ defamation claim is denied.
Initially, the Court concludes, as a matter of law, that Gonzalez’s statements
are susceptible to multiple meanings, some of which are defamatory, thereby
presenting a jury question as to how they should be understood. See Celle, 209 F.3d
at 178; Davis v. Ross, 754 F.2d 80, 82-83 (2d Cir. 1985) (holding that the
determination as to whether the words in question are susceptible to only one or
several meanings is for the Court to decide as a matter of law). Indeed, construed
in the light most favorable to the Plaintiffs, at least one possible reading of
Gonzalez’s statements imputes criminal activity to Tomas and Ian insofar as they
unlawfully entered and remained in the Hospital without permission. Cf. Loder v.
Nied, 89 A.D.3d 1197, 1200, 932 N.Y.S.2d 546 (3d Dep’t 2011) (finding statements
susceptible to a defamatory meaning insofar as they conveyed “at a minimum,
serious impropriety and, at worst, criminal behavior”); Martin v. Daily News, L.P.,
2009 NY Slip Op 31603(U), 2009 N.Y. Misc. LEXIS 3858, at *24 (Sup. Ct. N.Y. Cty.
July 20, 2009) (noting that a jury question is presented where an imputation of
criminal activity is susceptible of more than one meaning).
Such a reading is objectively reasonable in light of Defendant Knudsen’s
testimony that, at the behest of his ranking officer, he returned to the Hospital after
arresting Ian to collect a witness statement from Gonzalez that would later support
charges against Tomas.
This conclusion is further buttressed by Knudsen’s
testimony that, in the course of soliciting Gonzalez’s statements, he attempted to
confirm that Gonzalez was present for the events giving rise to the arrests of Tomas
and Ian, and that Gonzalez had, in fact, asked the men to leave the Hospital.
Whether this defamatory construction, among others, is the intended meaning of
Gonzalez’s statements, is a matter for a jury to decide.
Furthermore, the Court finds genuine issues of material fact regarding the
truthfulness of Gonzalez’s statements.
Despite indicating in the Burglary and
Criminal Trespass Affidavits that, on March 23, 2012 at 2:25 P.M. he was the owner,
lawful custodian, or licensed occupant of the Hospital, he testified inconsistently
with that position during his deposition. In particular, Gonzalez testified as follows:
Q: On March 23, 2012 at about 2:25, as a supervisor, was it your
understanding that you were a lawful custodian of Southside Hospital
at that date and time?
A: Not at the time, no.
Q: But as a supervisor of security at Southside Hospital, is it your
understanding that you’re a lawful custodian at that location?
See Gonzalez Dep. T. at 43-44. Gonzalez’s self-contradictory statements in this
regard are sufficient to permit a rational juror to find for the Plaintiffs on the issue
In this regard, Gonzalez’s representation that he was the lawful custodian on
the date and time in question is material. In fact, it is the linchpin of the entire
statement because, without it, the other factual assertions contained therein are
temporally unbounded and bear no direct relevance to the criminal trespass charges
the statement was meant to support.
Viewing the statement as a whole, and in the light most favorable to the
Plaintiffs, Gonzalez’s statement conveys that, at the time of the particular
complained-of events, he was the lawful custodian of the Hospital and, despite not
granting Tomas and Ian permission to enter Hospital property, they unlawfully did
so. See Davis, 754 F.2d at 83 (identifying relevant analytical factors, including: (i)
considering the publication “as a whole,” with a view toward its “whole apparent
scope and intent,” and “not picking out and isolat[ing] particular phrases”; and (ii)
reading the statement “against the background of its issuance with respect to the
circumstances of its publication” (internal citations and quotation marks omitted)).
Thus, a jury question exists as to whether, from the perspective of an ordinary and
average reader, Gonzalez’s statements are false and potentially defamatory. Cf. id.,
754 F.2d at 82-83 (applying an “ordinary and average reader” standard to
determine whether a statement was defamatory).
The Court finds issues of fact regarding the defamatory character and
truthfulness of Gonzalez’s statements. Therefore, it need not reach the Plaintiffs’
argument relating to the doctrine of defamation by implication.
Accordingly, the Hospital Defendants’ motion for summary judgment, to the
extent it seeks to dismiss the Plaintiffs’ Tenth Cause of Action as against Gonzalez,
As to Whether Summary Judgment is Appropriate Regarding
the Written Witness Statement Given by Defendant Benavides
The Hospital Defendants also contend that summary judgment is appropriate
as to the Plaintiffs’ libel claim as against Defendant Benavides because: (i) his
written witness statement is truthful and therefore not actionable; and similarly,
(ii) any allegedly defamatory words contained in his statement constitute pure
opinion and are also not actionable. The Court agrees.
Benavides’s statement contains the following factual assertions: (i) he was
working at the Hospital on the date and time in question; (ii) at approximately
2:26 P.M. he observed two men (Tomas and Ian) arguing with police inside the
Hospital; (iii) Ian was videotaping inside the Hospital in violation of HIPAA laws;
(iv) he instructed Ian to turn off the video camera and delete the recording; (v) at
some point, Tomas instructed Ian to run; (vi) in an effort to evade the police and
Hospital security, Ian ran away and into a yellow SUV; (vii) Tomas then blocked a
police car from following Ian; and (viii) Tomas threw himself onto the ground,
claiming to have been struck by a police car.
In this regard, Benavides testified that these assertions accurately reflect
what he observed, and that he carefully reviewed the statement prior to signing it,
even making a correction to reflect that Ian had been wearing an orange shirt and
not a yellow one, as the officer who initially wrote out the statement erroneously
The Plaintiffs fail to materially dispute the truthfulness of Benavides’s
statement. In fact, in their counterstatement pursuant to Local Civil Rule 56.1, the
Plaintiffs state only that: (i) Benavides did not instruct Ian to delete the video
recording; and (ii) Benavides did not see Ian get into a yellow SUV. However, it is
undisputed that Ian was instructed to stop videotaping inside the Hospital and that
he did, in fact, leave in a yellow SUV.
Thus, the Plaintiffs attempt to defeat
summary judgment only by calling into question whether or not Benavides
instructed Ian to delete the recording.
The Court finds that particular fact
immaterial as a matter of law because its truth or falsity has no appreciable effect
on the outcome of the case. Accordingly, the Plaintiffs’ argument in this regard is
insufficient to raise an issue of fact where none otherwise exists.
Moreover, Benavides testified unequivocally that the portion of his statement
relating to the men’s effort to evade the police and Hospital security constituted his
opinion, which was based on his observation of Ian running away from the police.
Although it appears he was not similarly questioned about his statement that
Tomas “blocked” Knudsen’s squad car from following Ian, the Hospital Defendants
nevertheless contend that it, too, is a protected, non-actionable opinion.
The Plaintiffs do not meaningfully address this contention in their opposition
papers, instead attempting to point out factual discrepancies between Benavides’s
alleged opinions and other evidence in the record.
In this regard, the Court finds, as a matter of law, that the following
statements by Benavides constitute pure opinion: (i) Ian’s act of running out of the
Hospital was an attempt to evade the police and Hospital security; and (ii) Tomas’s
act of falling to the ground in the vicinity of Knudsen’s squad car was an attempt to
“block” the car from pursuing Ian.
Indeed, there can be no question that an
ordinary reader would not reasonably understand Benavides’s words to imply
undisclosed facts justifying the opinions.
On the contrary, Benavides clearly
supplies the factual predicate for his opinions, which is based on his personal
knowledge, the truthfulness of which the Plaintiffs do not materially dispute.
In particular, Benavides’s opinion that Ian was attempting to evade police is
premised on his observations of Ian videotaping in violation of HIPAA laws; police
and Hospital personnel directing him to stop doing so; his father directing him to
run away; and Ian’s compliance with that directive, fleeing on foot into a vehicle,
despite police chasing after him and instructing him to stop running. These facts,
which the Plaintiffs do not dispute, inarguably support Benavides’ opinion.
Similarly, Benavides’s opinion that Tomas was attempting to “block”
Knudsen’s squad car from pursuing Ian’s vehicle is premised on his observations of
Ian running out of the Hospital away from the police officers; Ian getting into a
vehicle; police officers indicating that they “were going to chase” Ian, see Benavides
Dep. T. 48; Knudsen getting into his squad car; Tomas falling to the ground in the
vicinity of Knudsen’s squad car before he could put it in motion; and Tomas’s
conflicting remarks, initially claiming to have been struck by Knudsen’s car, and
subsequently claiming that he had a pre-existing injury.
The only one of these facts arguably disputed by the Plaintiffs concerns
where exactly in the vicinity of Knudsen’s squad car did Tomas fall? The Plaintiffs
contend that a question of fact exists because Benavides describes Tomas falling “in
front of” Knudsen’s car, while Knudsen states that he heard a “loud bang” near the
middle or rear of the passenger side. See Pl. Memo in Opp. at 11-12. Even viewing
this inconsistency in the light most favorable to the Plaintiffs, it is insufficient to
defeat summary judgment. Indeed, regardless of whether Tomas fell in front of, to
the side of, or behind Knudsen’s car, the Plaintiffs do not dispute that his fall
prevented Knudsen from placing the car in motion in order to pursue Ian. Under
these circumstances, Benavides had ample facts available to him to reasonably form
the opinion that Tomas was acting to “block” Knudsen’s squad car.
Accordingly, the Hospital Defendants’ motion for summary judgment, to the
extent it seeks it seeks to dismiss the Plaintiffs’ Tenth Cause of Action as against
Benavides based on libel, is granted.
As to Whether Summary Judgment is Warranted on the Plaintiffs’
Claim Based on Negligence
The Hospital Defendants contend that summary judgment is warranted as to
the Plaintiffs’ negligence cause of action because no relationship existed between
the parties that would give rise to a legal duty of care. The Hospital Defendants
rely on the facts that Tomas and Ian were “visitors” at the Hospital and “had no
communications” with Gonzalez or Benavides. See Movants Memo of Law at 17-18.
The Court need not reach this argument because it finds the Plaintiffs’
negligence claim impermissibly duplicative of their defamation claim, warranting
dismissal as a matter of law.
In this regard, the basis of the Plaintiffs’ negligence claim against Gonzalez
and Benavides is that they acted negligently in making their statements to the
police. In particular, the Plaintiffs claim that a reasonably prudent person under
the circumstances would not have made such statements because their contents are
either contradicted by other facts in the record or altogether untrue.
However, this is the same basis for the Plaintiffs’ defamation claim. Indeed,
an essential element of libel also requires them to establish that Gonzalez’s and
Benavides’s statements were negligently made. See Lawlor, 394 F. Supp. at 732
n.19 (S.D.N.Y. 1975) (noting that New York courts apply a negligence standard to
defamation claims by private plaintiffs).
In addition, the Court notes that the Plaintiffs completely fail to address the
Hospital Defendants’ contention that no duty of care existed between the parties.
Therefore, the Court finds the Plaintiffs’ negligence claim is duplicative of and
subsumed within their defamation claim. See Pusey v. Bank of Am., N.A., 14-cv4979, 2015 U.S. 91083, at *9 (E.D.N.Y. July 14, 2015) (dismissing a negligence
claim as duplicative of a defamation claim; noting that “New York courts have ‘kept
a watchful eye for claims sounding in defamation that have been disguised as other
causes of action’ ” (quoting Lesesne v. Brimecome, 918 F. Supp. 2d 221, 224
(S.D.N.Y. 2013))); Lucking v. Maier, 03-cv-1401, 2003 U.S. Dist. LEXIS 23060, at
*21 (S.D.N.Y. Dec. 23, 2003) (dismissing the plaintiff’s negligence claim on the
grounds that it could “only be understood as duplicative of or subsumed by
plaintiff’s claim for defamation” because, as here, “an element of a defamation or
libel claim is fault . . . on the part of the defendants”); see also Trachtenberg v.
FailedMessiah.com, 43 F. Supp. 3d 198 (E.D.N.Y. 2014) (dismissing a negligence
claim under Fed. R. Civ. P. 12(b)(6), explaining that the “plaintiff’s failure to plead
that defendant owed a duty to plaintiff and that defendant breached that duty
strongly suggests that plaintiff’s negligence claim is duplicative of her defamation
claim. . . . [T]he conduct plaintiff alleges – that defendant published a false article
about her – falls well within the tort of defamation; therefore, defamation, and not
negligence, is where plaintiff’s claim appropriately lies”) (citing Sweeney v.
Prisoners’ Legal Servs. of New York, Inc., 146 A.D.2d 1, 7, 538 N.Y.S.2d 370 (3d
Dep’t 1989)); cf. Chao v, Mount Sinai Hosp., 10-cv-2869, 2010 U.S. Dist. LEXIS
133686, at *33-*34 (S.D.N.Y. Dec. 17, 2010) (“Where tort claims essentially restate a
defamation claim that has been dismissed on a motion to dismiss, the tort claims
must also be dismissed” (citing O’Brien v. Alexander, 898 F. Supp. 162, 172
Further, it is within the Court’s discretion to dismiss duplicative claims sua
sponte. E.g., Safka Holdings LLC v. iPlay, Inc., 42 F. Supp. 3d 488, 492 (S.D.N.Y.
2013); Sorrell v. Inc. Vill. of Lynbrook, 10-cv-49, 2012 U.S. Dist. LEXIS 77303, at*14
n.4 (E.D.N.Y. June 4, 2012).
Accordingly, the Hospital Defendants’ motion for summary judgment, to the
extent it seeks it seeks to dismiss the Plaintiffs’ Twelfth Cause of Action based on
negligence, is granted.
As to Whether Summary Judgment is Warranted on the Plaintiffs’
Claims Based on Conspiracy and Falsification of Documents
The Hospital Defendants contend that summary judgment is warranted as to
the Plaintiffs’ Thirteenth Cause of Action for common law civil conspiracy.
particular, the Hospital Defendants contend that New York law does not recognize
a stand-alone cause of action for civil conspiracy and there is no evidence to
demonstrate that the Hospital Defendants corruptly agreed to commit any of the
other torts alleged against them, namely, defamation, negligence, and falsification
The Hospital Defendants further contend that summary judgment is also
warranted as to the Plaintiffs’ Fourteenth Cause of Action for common law
falsification of documents. In particular, they claim that New York common law
does not recognize such a claim; rather, any cause of action for falsifying documents
arises under statute and only provides a remedy in instances where the false
documents seek to claim monetary payment from the government. See, e.g., N.Y.
State Fin. L. § 188(1) (defining a “claim” for purposes of New York’s False Claims
Act as a “request or demand . . . for money or property”).
The Plaintiffs’ opposition papers fail to address either of these aspects of the
Hospital Defendants’ summary judgment motion. Thus, the Hospital Defendants
contend in their reply papers that both claims should be deemed unopposed and
“This Court agrees that Plaintiffs’ failure to acknowledge, let alone address,
the [civil conspiracy and falsification of document claims] in opposition to the
[m]otion signals the abandonment of these claims.”
Avola v. Louisiana-Pacific
Corp., 991 F. Supp. 2d 381, 390 (E.D.N.Y. 2013) (granting summary judgment on
five claims not directly opposed in the plaintiff’s opposition papers) (citing Struthers
v. City of N.Y., 12-cv-242, 2013 U.S. Dist. LEXIS 76916, at *62-*63 (E.D.N.Y. May
31, 2013); Robinson v. Roosevelt Union Free Sch. Dist., 10-cv-834, 2012 U.S. Dist.
LEXIS 76524, at *18 (E.D.N.Y. May 31, 2012); Santiago v. City of N.Y., 05-CV-3668,
2009 U.S. Dist. LEXIS 30371, at *37-*38 n.20 (E.D.N.Y. Mar. 31, 2009); Williams v.
British Airways, PLC, 04-cv-471, 06-cv-5085, 2007 U.S. Dist. LEXIS 73997, at *47*48 (E.D.N.Y. Sept. 27, 2007); Ostroski v. Town of Southold, 443 F. Supp. 2d 325,
340 (E.D.N.Y. 2006); DeVito v. Barrant, 03-cv-1927, 2005 U.S. Dist. LEXIS 22444,
at *33 (E.D.N.Y. Aug. 23, 2005); Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75
(E.D.N.Y. 2003) (“Federal courts may deem a claim abandoned when a party moves
for summary judgment on one ground and the party opposing summary judgment
fails to address the argument in any way”); see also Lelin v. Bank of Am., N.A., 13cv-6430, 2015 U.S. Dist. LEXIS 65900, at *3 (E.D.N.Y. May 20, 2015); Rinaldi v.
Quality King Distribs., 29 F. Supp. 3d 218, 230 (E.D.N.Y. 2014); Blake v. Rice, 487
F. Supp. 2d 187, 218 (E.D.N.Y. 2007) (citing de Dussuau v. Blockbuster, Inc., 03-cv6614, 2006 U.S. Dist. LEXIS 7368, at *24 (S.D.N.Y. Mar. 7, 2006)).
Accordingly, the Court deems the Plaintiffs’ Thirteenth and Fourteenth
Causes of Action, based on conspiracy and falsification of documents, respectively,
abandoned and grants the Hospital Defendants’ motion for summary judgment
dismissing those claims.
As to Whether Summary Judgment is Warranted as to NSLIJ and
Finally, the Hospital Defendants contend, and the Plaintiffs do not dispute,
that each of the claims asserted against the Hospital Defendants relates solely to
Gonzalez and Benavides, individually, and thus summary judgment is appropriate
as to Defendants NSLIJ and Southside Hospital.
The Plaintiffs contend, however, because the complained-of conduct by
Gonzalez and Benavides occurred while they were employed by Defendant NSLIJ,
and within the scope of their employment, that Defendant NSLIJ is vicariously
liable for their torts.
Initially, it warrants noting that the Plaintiffs appear to concede that
Gonzalez and Benavides were employed by Defendant NSLIJ and not Southside
Hospital. In light of this concession, and because the Plaintiffs do not assert any
other cognizable claims against Southside Hospital, summary judgment dismissing
the Complaint as against Southside Hospital is appropriate.
Moreover, it warrants noting that, in light of the Court’s previous holdings,
the only remaining claim against any of the Hospital Defendants is the Tenth
Cause of Action for libel as against Gonzalez. Thus, the potential vicarious liability
that may attach to Defendant NSLIJ is limited to damages resulting from
Gonzalez’s allegedly defamatory statements.
Also, the Court notes that the Plaintiffs failed to specifically plead a cause of
action for respondeat superior in their Complaint. Nevertheless, New York courts
have considered the merits of a vicarious liability claim even where such a theory is
absent from the operative pleading. See Saffar v. Albany Med. Ctr. Hosp., 2012 NY
Slip Op 30489(U), 2012 N.Y. Misc. LEXIS 917, at *8 (Sup. Ct. Albany Cty. Mar. 2,
2012) (“Although the plaintiff did not specifically plead a claim based upon
respondeat superior, the plaintiff has demonstrated an actionable claim and
summary judgment must be denied”) (citing Ramos v. Jake Realty Co., 21 A.D.3d
744, 745-46, 801 N.Y.S.2d 566 (1st Dep’t 2005) (deeming the complaint amended to
assert a claim for vicarious liability where facts in the record raised issues of fact as
to employer’s responsibility for employee’s torts); Alvord & Swift v. Muller Constr.
Co., 46 N.Y.2d 276, 413 N.Y.S.2d 309 (1978)); Rodriguez v. New York City Tr. Auth.,
33 Misc. 3d 1206(A), 938 N.Y.S.2d 229 (Sup. Ct. N.Y. Cty. Oct. 6, 2011) (finding
“without merit” the argument that an amended complaint which failed to raise
respondeat superior precludes recovery under that theory).
Finding the Plaintiffs to have demonstrated an actionable claim for vicarious
liability against Defendant NSLIJ, the Court, in its discretion, will consider the
Plaintiffs’ respondeat superior theory of liability against Defendant NSLIJ, and
deems the Complaint amended to assert such a claim.
Under New York law, “[a]n employer cannot be held vicariously liable for the
acts of its employees unless those acts were committed while the employees were
performing their duties for the express benefit of the employer.”
EEOC v. Die
Fliedermaus, L.L.C., 77 F. Supp. 2d 460, 473 (S.D.N.Y. 1999) (citing Ross v. Mitsui
Fudosan, Inc., 2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998)). Whether an employee’s act
was performed within the scope of his employment “is heavily dependent on factual
considerations, and therefore the question is ordinarily one for the jury.” Id. (citing
Riviello v. Waldron, 47 N.Y.2d 297, 302, 418, N.Y.S.2d 300 (1979)).
Rodriguez v. New York City Transit Authority, 33 Misc. 3d 1206(A), 938
N.Y.S.2d 229 (Sup. Ct. N.Y. Cty. Oct. 6, 2011), is instructive. There, the plaintiff
had been riding on a subway car when he observed a large man physically
threatening a woman. He alerted the conductor to what was happening, but the
conductor allegedly did not respond adequately.
Eventually, the conductor
contacted the police and allegedly falsely notified them that the plaintiff had
Although the plaintiff denied any such conduct, the conductor’s
statement to police formed the basis for the plaintiff’s arrest and prosecution.
In an action to recover for damages associated with these events, the plaintiff
contended that he had a valid claim sounding in vicarious liability against the
conductor’s employer, the New York City Transit Authority (“NYCTA”), because the
incident occurred while the conductor was on duty. The NYCTA contended, as the
Hospital Defendants do here, that the conductor’s false report of an on-the-job
injury would not advance the employer’s interests and that the conductor had no
obligations as an NYCTA employee to speak to the police.
Indeed, here, the
Hospital Defendants contend that any statements Gonzalez made to the police on
March 23, 2012, were in his capacity as a citizen, not an employee, and that his
doing so did not further NSLIJ’s interests.
The court in Rodriguez rejected such reasoning, holding that it could not
conclude as a matter of law that the conductor’s “actions in speaking to police
officers were not reasonably said to be necessary or incidental to his employment as
a train conductor.”
So, too, is the case here as to Gonzalez. As a security officer,
and on the day in question a security supervisor, Gonzalez was given the task of
maintaining order and responding to disturbances in the Hospital. See Gonzalez
Dep. T. at 15-16 (testifying that his duties include responding to calls when there is
a problem). In this capacity, he responded to a disturbance call in the Hospital’s
emergency department arising from the incidents that form the basis of this action.
Indeed, there can be no legitimate dispute that the SCPD sought Gonzalez’s
statement not, as the Hospital Defendants contend, because he happened to be in
the vicinity of the incident as a citizen, but because he was the Hospital’s security
supervisor that day. Whether he granted Tomas and Ian entrance into the Hospital
was germane to whether they had criminally trespassed.
Moreover, as discussed above, there exists genuine questions of fact as to the
truthfulness and defamatory character of the statements Gonzalez gave to the
police in his capacity as a Hospital security officer. As a result, to the extent the
Plaintiffs can establish direct liability against Gonzalez for defamation, they may
also be able to establish derivative liability for such conduct as against his
Accordingly, the motion of the Hospital Defendant NSLIJ for summary
judgment, to the extent it seeks to dismiss the Plaintiffs’ claims as against it, is
For the reasons set forth in this decision, the Court grants in part and denies
in part the Hospital Defendants’ motion for summary judgment.
The Court grants the motion and dismisses: (i) the Tenth Cause of Action for
common law defamation as against Defendant Benavides; (ii) the Twelfth Cause of
Action for common law negligence as against all Hospital Defendants, finding that
claim impermissibly duplicative of the Plaintiffs’ defamation cause of action; (iii) the
Thirteenth and Fourteenth Causes of Action for civil conspiracy and falsification of
documents, respectively, as against all Hospital Defendants, finding those claims
abandoned; and (iv) all Causes of Action as against Defendant Southside Hospital.
The Court denies the motion to the extent it seeks to dismiss the Tenth
Cause of Action for common law defamation as against Defendant Gonzalez, and to
the extent it seeks to dismiss all claims as against Defendant NSLIJ.
In this regard, the Court exercises its discretion to consider the Plaintiffs’
theory of vicarious liability against Defendant NSLIJ and deems the Complaint
amended to assert such a claim.
However, in light of the Court’s rulings, the
potential vicarious liability that may attach to NSLIJ is limited to damages
resulting from Gonzalez’s allegedly defamatory statements.
Dated: Central Islip, New York
July 21, 2015
/s/ Arthur D. Spatt______________
ARTHUR D. SPATT
United States District Judge
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