Mack v. Parker Jewish Institute for Health Care and Rehabilitation et al

Filing 21

MEMORANDUM AND ORDER granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, Defendants' motion to dismiss is granted in part and denied inpart. Specifically, Defendants' motion to dismiss the federal RICO claim is granted and that claim is dismissed with prejudice. With respect to that portion of Defendants' motion that seeks a dismissal of the state law claims on their merits, that application is denied. Rather, the Court declines to exercise supplemental jurisdiction over the remaining state law claims and thoseclaims are accordingly dismissed without prejudice. The Clerk of the Court is directed to enter judgment accordingly and to thereafter close the file in this action. (Ordered by Judge Leonard D. Wexler on 10/30/2014.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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-----------------------------------------------------------)(

LONG ISLAND OFFICE

DR. ELEANOR MACK,

OCT 30 2014

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MEMORANDUM AND ORDER

cv 14-1299

Plaintiff,
-against-

(Wexler, J.)

PARKER JEWISH INSTITUTE FOR HEALTH
CARE AND REHABILITATION, CHARLES
SEIDE, GEORGIENE KENNY and NORA
KUSTIN,
Defendants.

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APPEARANCES:
BRILL LEGAL GROUP, P.C.
BY:
Peter E. Brill, Esq.
Attorneys for Plaintiff
150 Motor Parkway, Suite 401
Hauppauge, New York 11788
HOGAN LYELLS US LLP
BY:
Robert B. Buehler, Esq.
Nathanial S. Boyer, Esq.
Attorneys for Defendants
875 Third Avenue
New York, New York 10022
KAUFMAN BORGEEST & RYAN LLP
BY:
Michael P. Mezzacappa, Esq.
Stephanie B. Gitnik, Esq.
Matthew B. Spergel, Esq.
Attorneys for Defendants
200 Summit Lake Drive
Valhalla, New York 10595

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WEXLER, District Judge:
Before the Court is Defendants' motion to dismiss Plaintiffs Complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be
granted. Plaintiff opposes Defendants' motion. For the following reasons, Defendants' motion
is granted in part and denied in part.

BACKGROUND
The Plaintiff, Dr. Eleanor Mack ("Mack"), is a Doctor of Pharmacy, licensed by the State
of New York, with more than twenty-five years of experience as a pharmacist. (Compl. ~ 1, 8.)
Defendant Parker Jewish Institute for Health Care and Rehabilitation ("Parker") is a New York
State not-for-profit corporation located in New Hyde Park, New York, that provides
rehabilitation and nursing home services. (Compl.

~

2.) Plaintiff was employed by Parker as a

pharmacist from November 28, 2011 to March 30, 2012. (Compl.

~

8.)

While employed at Parker, Plaintiffs direct supervisor was Defendant Charles Seide
("Seide"), Parker's Director of Pharmacy. (Compl.

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3.) Seide's supervisor was Defendant

Georgiene Kenny ("Kenny"), a Vice President at Parker. (Compl.

~

4.) Defendant Nora Kustin

("Kustin") was employed as a pharmacist at Parker and was Plaintiffs co-worker. (Compl.

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5.)

In her Complaint, Plaintiff alleges that while employed at Parker, she became aware of a
conspiracy to commit Medicare prescription billing fraud by Defendants Seide, Kenny and
Kustin. (Compl. ~ 9.) The majority of Parker's patients receive Medicare coverage for all or part
of their care, including prescription drug coverage. (Com pl.

~

11.) Plaintiff alleges that for these

patients, it was understood and agreed by all Defendants, including Parker, that, upon Seide's
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authorization, both Seide and Kustin would personally override Parker's internal controls to
renew prescription drugs for patients prior to the date that such prescriptions could lawfully be
renewed. (Compl. ~~ 12-13.) Once the new prescriptions were authorized, Parker staff would
deliver the new prescriptions and remove the old, unused prescription drugs from the patients'
rooms. (Compl.

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14.) The old, unused prescription drugs would then be placed in a storage

room in the basement of the Parker facility, known as the "return room," allegedly to be canceled
in Parker's system at a later date or returned to stock. (Compl.

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15.) However, these returned

prescription drugs and their corresponding prescriptions were rarely, if ever, canceled or returned
to stock. (Compl.

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16.) As a result, Parker would benefit from double billing Medicare for the

same drugs and patients. (Compl.

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16.)

When Plaintiff discovered the foregoing practices, she approached Seide and Kustin.
(Compl.

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18.) Plaintiff was repeatedly advised by Seide that the drugs would be canceled in the

system at a later date, but such cancellations never occurred. (Compl.

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18.) On one occasion,

Plaintiff reported her suspicions to Seide and, later that same day, to Kustin. (Compl.

~

19.)

Plaintiff alleges that later that evening, Seide, Kenny and Kustin conspired to accuse Plaintiff of
diverting prescription drugs and narcotics for her own personal use. (Compl.

~

19.) Before

leaving work that day, Plaintiff was stopped by Parker security guards and was searched.
(Compl.

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19.) However, no prescription drugs or narcotics were found on Plaintiff. (Compl.

19.)
Thereafter, Kenny and Seide arranged a meeting with Parker's human resources
department and brought formal allegations of misconduct against Plaintiff. (Compl.

~

20.)

Plaintiff was formally accused of diverting prescription drugs and narcotics and of making
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~

numerous false entries in Parker's computer system to conceal her drug diversion. (Compl.

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20.) In response to these allegations and in consultation with Parker senior management,
Plaintiff resigned her position. (Compl.

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20.) Plaintiff alleges that despite her resignation,

Parker, along with Seide, Kenny and Kustin, made false allegations against her to the New York
State Department of Education Office of Professional Discipline, which investigated Plaintiff but
declined to bring professional disciplinary charges against her. (Compl.

~

21.)

Plaintiff commenced the within action on February 26, 2014, alleging a conspiracy to
violate the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §
1961 (d), as well as a number of state law claims, including slander, libel, interference with
business relations, intentional infliction of emotional distress and negligent infliction of
emotional distress. Defendants now move to dismiss Plaintiffs Complaint in its entirety.

DISCUSSION
I.

Legal Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, _
U.S._, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,570
(2007)). "Facial plausibility" is achieved when the "the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). As a general rule, the
court is required to accept as true all of the allegations contained in the complaint. See Iqbal, 129
S. Ct. at 1949; Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229,237 (2d Cir. 2007).
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However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements ... are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 194950 (citation omitted); see also Twombly, 555 U.S. at 555 (stating that the Court is "not bound to
accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations," which
state a claim for relief. Iqbal, 129 S. Ct. at 1950. A complaint that "tenders 'naked assertion[ s]'
devoid of 'further factual enhancement"' will not suffice. Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 555 U.S. at 557). Rather, only a complaint that "states a plausible claim for relief'
will survive a motion to dismiss. Iqbal, 129 S. Ct. at 1950.

II.

Civil RICO Conspiracy
The only federal claim contained in Plaintiff's Complaint alleges a violation of the RICO

conspiracy statute. Specifically, Plaintiff alleges a violation of 18 U.S.C. § 1962(d), which
makes it "unlawful for any person to conspire to violate any of the provisions of subsections (a),
(b), or (c)" of the RICO statute. 18 U.S.C. § 1962(d). Proper pleading of a substantive RICO
violation is required to sustain a RICO conspiracy claim. See First Capital Asset Mgmt., Inc. v.
Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004); Wild Edibles Inc. v. Industrial Workers ofthe
World Loc. 460/640, No. 07 Civ. 9225, 2008 WL 4548392, at *3 (S.D.N.Y. Oct. 9, 2008).
While Plaintiff's Complaint does not expressly contain a substantive RICO claim, Plaintiff
makes various references to a conspiracy to violate subsection (c) of the RICO statute.
Accordingly, the Court will consider Plaintiff's Complaint to contain a cause of action pursuant
to 18 U.S.C. § 1962(c).
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18 U.S.C. § 1962(c) makes it unlawful for "any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity .... " 18 U.S.C. § 1962(c). A violation of Section 1962(c) is
properly pled by a showing of: "(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity." DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001) (quoting Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)).
Here, Plaintiffs RICO claim is wholly devoid of merit. Plaintiff fails to properly plead
either the existence of an enterprise or a pattern of racketeering activity, both of which are
necessary to establish a violation of 18 U.S.C. § 1962. For the reasons set forth below, the
allegations asserted in Plaintiffs' Complaint fail to rise to the level of a federal RICO claim.
1.

Enterprise
A RICO enterprise is defined broadly and includes any "individual, partnership,

corporation, association or other legal entity, and any union or group of individuals associated in
fact although not a legal entity." 18 U.S.C. § 1961(4). Such an enterprise need not be a formal
corporation, group or organization. Instead, the statute is satisfied by a showing of a formal or
informal group of persons, "associated for a common purpose of engaging in a course of
conduct" which then functions as a "continuing unit." United States v. Turkette, 452 U.S. 576,
583 (1981); see also United States v. Morales, 185 F.3d 74, 80 (2d Cir. 1999). Defendants
alleged to be members of the enterprise unit must "share a common purpose to engage in a
particular fraudulent course of conduct" and work together to achieve their goal. First Capital,
385 F.3d 159 at 174.
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In support of a claim that there exists a RICO enterprise, a plaintiff must also plead that
each defendant participated in the "operation or management" of the enterprise. First Capital,
385 F.3d at 175-76. This requires a showing that each had "some part" in "directing the affairs
ofthe enterprise." Reves v. Ernst & Young, 507 U.S. 170, 179 (1993). While each defendant
need not have primary responsibility for the functioning of the enterprise, each must, at least,
have some part in directing the affairs of the alleged unit. See DeFalco, 244 F.3d at 309.
Additionally, a claim of a RICO enterprise must be supported by information "regarding the
hierarchy, organization, and activities of the alleged enterprise," to support the allegation that the
enterprise is a functioning unit. Continental Fin. Co. v. Ledwith, No. 08 Civ. 7272, 2009 WL
1748875, at *5 (S.D.N.Y. June 22, 2009) (citation omitted); see also Mikhlin v. HSBC, No. 08CV-1302, 2009 WL 485667, at *3 (E.D.N.Y. Feb. 26, 2009).
While the standard for pleading an enterprise in this circuit is liberal, the court cannot
conclude that Plaintiffs Complaint reaches even this low threshold. To sufficiently allege the
existence of an enterprise under RICO, a plaintiff must plead "the existence of two distinct
entities: (1) a 'person'; and (2) an 'enterprise' that is not simply the same 'person' referred to by
a different name." Cedric Kushner Promotions. Inc. v. King, 533 U.S. 158, 161 (2001). "[B]y
virtue of the distinctness requirement, a corporate entity may not be both the RICO person and
the RICO enterprise under section 1962(c)." Riverwoods Chappaqua Corp. v. Marine Midland
Bank, N.A., 30 F.3d 339,244 (2d Cir. 1994). While a RICO enterprise may "consist of a
corporate defendant associated with others to form an enterprise that is 'sufficiently distinct'
from the corporate entity itself, the 'distinctness requirement may not be circumvented[]' by
alleging a RICO enterprise that 'consists merely of a corporate defendant associated with its own
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employees or agents carrying on the regular affairs of the defendant .... " R.C.M. Executive
Gallery Corp. v. Rols Capital Co., 901 F. Supp. 630,640 (S.D.N.Y. 1995) (quoting Riverwoods,
30 F.3d at 344) (additional citations omitted). "Because a corporation may only function through
the actions of its employees and agents, a corporation's employees, together with the corporation,
do not form an enterprise distinct from the corporation itself." Ferro v. Metro. Ctr. for Mental
Health, No. 13 Civ. 2347, 2014 U.S. Dist. LEXIS 41477, at *12 (S.D.N.Y. Mar. 26, 2014) (citing
Riverwoods, 30 F.3d at 344).
Plaintiffs Complaint alleges that Parker is an enterprise under RICO and that Defendants
Seide, Kenny and Kustin conducted its affairs. (Compl.

~

25.) However, Parker is also named as

a defendant herein. "[A ]n assertion that a corporate defendant 'person' violated § 1962(c) fails
where the plaintiff names the same corporate defendant as the 'enterprise." Palatkevich v.
Choupak, Nos. 12 Civ. 1681, 12 Civ. 1682,2014 U.S. Dist. LEXIS 10570, at *36 (S.D.N.Y. Jan.
24, 2014) (citing Bennett v. U.S. Trust Co. ofNew York, 770 F.2d 308,315 (2d Cir. 1985).
Plaintiffs failure to allege an enterprise distinct from the defendants under RICO is fatal to
Plaintiffs RICO claim. See Palatkevich, 2014 U.S. Dist. LEXIS 10570, at *40 ("[C]ivil RICO
claim against corporations who are sued as RICO 'persons' fail where the members of the
alleged 'enterprise' include only the corporate defendant ... and its employees or agents, and no
other unrelated parties.").
2.

Pattern of Racketeering Activity
A "pattern of racketeering activity" requires a showing of at least two related

predicate acts of racketeering activity occurring within a ten year period." 18 U.S.C. § 1961(5);
see also First Capital, 385 F.3d at 178. Predicate acts of racketeering activity encompass a
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variety of federal and state criminal offenses, including wire fraud and mail fraud, as alleged
here. See 18 U.S.C. § 1961(1); see also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud).
While federal wire and mail fraud constitute RICO predicate acts, common law fraud under state
law does not. See Cofacredit, S.A. v. Windsor Plumbing Supply Co., Inc., 187 F.3d 229,242 (2d
Cir. 1999).
"The mail and wire fraud statutes require a plaintiff to show that the defendant
participated in a scheme to defraud victims of money or property, through the use of the mails or
an interstate wire." Anctil v. Ally Fin., Inc., No. 12-CV-8572, 2014 U.S. Dist. LEXIS 16382, at
*36 (S.D.N.Y. Feb. 10, 2014) (citing United States v. Walker, 191 F.3d 326,334 (2d Cir. 1999))
(additional citation omitted). Where a civil RICO claim is predicated on acts of fraud, a plaintiff
must comply with Federal Rule of Civil Procedure 9(b)'s requirement to plead with particularity.
See Anctil, 2014 U.S. Dist. LEXIS 16382, at *36 (citing Moore v. PaineWebber, Inc., 189 F.3d
165, 172-73 (2d Cir. 1999)); see also Plount v. Am. Home Assurance Co., 668 F. Supp. 204,206
(S.D.N.Y. 1987) ("[A]ll ofthe concerns that dictate that fraud be pleaded with particularity exist
with even greater urgency in civil RICO actions."). "Allegations of predicate mail and wire fraud
acts 'should state the contents ofthe communications, who was involved, ... where and when
they took place, and ... explain why they were fraudulent."' Spool v. World Child Int'l
Adoption Agency, 520 F .3d 178, 185 (2d Cir. 2008) (quoting Mills v. Polar Molecular Corp., 12
F.3d 1170, 1176 (2d Cir. 1993)).
Plaintiffs Complaint fails to plead either mail or wire fraud with the requisite
particularity. First, the Complaint is silent with respect to the specific dates on which the alleged
acts of mail and/or wire fraud occurred. Rather, Plaintiff simply states that she was employed by
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Parker from November 28, 2011 to March 30, 2012 and that the acts of fraud occurred sometime
within that time frame. (Compl.

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8.) Second, Plaintiff fails to identify the specific mailings and

or wirings alleged to be fraudulent. While Plaintiff asserts that Defendants engaged in a scheme
to commit Medicare prescription billing fraud, she fails to explain how exactly such fraud
occurred through the use of the mails or interstate wires. The only mailing or use of the wires
that Plaintiff does specifically allege pertains to the transmission of Defendants' alleged
defamatory statements against her to the New York State Department of Education Office of
Professional Discipline, which cannot form the basis of a RICO claim. See Conte v. Newsday,
Inc., 703 F. Supp. 2d 126, 138 (E.D.N.Y. 2010) (noting that "defamation does not provide a
requisite predicate act for a RICO claim"). Nor does Plaintiff articulate who specifically made
the fraudulent mailings and or wirings, instead lumping all Defendants together in the alleged
scheme.
Based on the foregoing, the Court finds that Plaintiffs Complaint fails to adequately
plead a substantive civil RICO violation. Since Plaintiffs Complaint fails to state a substantive
RICO claim, it similarly fails to state a claim for RICO conspiracy. See First Capital, 385 F.3d at
182; Wild Edibles, 2008 WL 4548392, at *3. Accordingly, Plaintiffs RICO claim is dismissed.

III.

Standing
Defendants also contend that Plaintiff lacks standing to assert a RICO claim. In general,

"RICO standing is a more rigorous matter than standing under Article III." Denney v. Deutsche
Bank AG, 443 F.3d 253, 266 (2d Cir. 2006) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113,
123 (2d Cir. 2003)). "The RICO statute grants standing to '[a]ny person injured in his business
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or property by reason of a violation of section 1962 .... " Lerner, 318 F.3d at 120 (quoting 18
U.S.C. § 1964(c)). "To demonstrate standing, a plaintiff must plead, at a minimum," (1)
defendant's violation of§ 1962; (2) cognizable injury to Plaintiffs business or property; and (3)
causation. Lerner, 318 F .3d at 120. As set forth above, Plaintiff has not adequately pleaded the
first element necessary to establish standing - a RICO violation. Accordingly, Plaintiff lacks
standing to bring a RICO claim based on her failure to plead a RICO violation.
Even assuming arguendo that Plaintiff was able to sufficiently plead a RICO violation,
both the second and third elements for RICO standing - injury and causation - are lacking here.
With respect to the injury allegedly suffered by Plaintiff, the Complaint states that as a result of
Defendants' pattern of racketeering activity, Plaintiffwas "slandered, libeled, and defamed," and
that Defendants' actions caused Plaintiff"immense pain and suffering." (Compl.

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22.) The

Complaint further alleges that although Plaintiff is "currently employed, she has been unable to
seek employment that reflects her level of professional achievement and standing within her
field, or to further her career due to the damage done to her reputation by defendants." (Compl.
22.) However, "generalized reputational harms," such as that alleged by Plaintiff, are not a
cognizable injury under RICO. See Kimm v. Lee, 196 Fed. Appx. 14, 16 (2d Cir. 2006) (citing
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21,23 (2d Cir. 1990)).
While Plaintiff argues that her injuries involve more than just damage to her reputation,
she fails to cite to any specific injury to her business or her property. A RICO plaintiff only has
standing "when his or her 'actual loss becomes clear and definite." Denney, 443 F.3d at 266
(quoting First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir. 1994)
(additional citation omitted). Plaintiff has not quantified the loss she alleges to suffer, instead
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~

simply that she has not been able to find employment reflective of her level of education and
experience. 1 Such allegations are too speculative to constitute an injury to business or property.
See Kimm, 196 Fed. Appx. at 16 (citing Hecht v. Commerce Clearing House, Inc., 897 F.2d 21,
23 (2d Cir. 1990)).
Finally, as to the third element necessary to confer RICO standing- causation- a plaintiff
must demonstrate that "the defendant's alleged RICO violation was the 'but-for' or cause-in-fact
of his injury" as well as "the legal or proximate cause." First Nationwide Bank, 27 F.3d at 769
(citing Holmes v. SIPC, 503 U.S. 258, 266 (1992)). "[P]roximate cause ... requires 'some direct
relation between the injury asserted and the injurious conduct alleged.' A link that is 'too
remote,' 'purely contingent,' or 'indirec[t]' is insufficient." Hemi Group, LLC v. City of New
York, 559 U.S. 1, 9 (2010) (quoting Holmes, 503 U.S. at 268,271, 274) (alteration in original).
Here, the alleged RICO violation is a conspiracy to commit Medicare fraud. Plaintiff
alleges that in furtherance of that conspiracy, Defendants made false allegations against her to the
New York State Department ofEducation Office ofProfessional Discipline, causing harm to her
reputation and resulting in her inability to find employment commensurate with her education
and experience. However, contrary to Plaintiffs arguments, the two events are not directly
related. Any injury suffered as a result of Defendants' alleged RICO violation- defrauding
Medicare- would be borne by the federal government and its taxpayers. The injury suffered by

1

Although Plaintiff argues that the injuries she suffered "are much more in line with
those damages other courts have recognized as proper due to plaintiffs' victimization by the
criminal acts of conspirators in a scheme to defraud," (Pl. Mem. of Law in Opp'n 8), she fails to
cite to a single Second Circuit case, whether by the Court of Appeals or by any district courts
within the Circuit. Rather, Plaintiff cites a host of cases from the Fifth, Eighth and Ninth
Circuits for support, none of which have any precedential value in this Court.
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Plaintiff was not a direct result of the alleged scheme to defraud Medicare, but rather directly
resulted from Defendants' allegations to the New York State Department of Education Office of
Professional Discipline. "Acts that merely 'furthered, facilitated, permitted or concealed an
injury which happened or could have happened independently of the act' do not directly cause
that injury, and thus do not proximately cause it." Picard v. Kohn, 907 F. Supp. 2d 392, 397
(S.D.N.Y. 2012) (quoting DeSilva v. North Shore-Long Island Jewish Health Sys., Inc., 770 F.
Supp. 2d 497, 524 (E.D.N.Y. 2011)) (additional citation omitted). The injury Plaintiff alleges to
have suffered could have happened regardless of whether there was a conspiracy to commit
Medicare fraud. As such, her injury was not proximately caused by the Defendants' alleged
RICO violation. Accordingly, Plaintiff does not have standing to bring a RICO claim.

III.

Plaintiffs State Law Claims
With respect to Defendants' request that the Court dismiss Plaintiffs state law claims on

their merits, that part of the motion is denied. However, having found that Plaintiffs federal
claim fails as a matter of law, there is no longer any independent basis for federal jurisdiction in
the within action. Although the Court has the discretion to exercise supplemental jurisdiction
over plaintiffs remaining state law claims, see 28 U.S.C. § 1367(a), it declines to do so. See 28
U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a
claim ... if ... the district court has dismissed all claims over which it has original jurisdiction
.... ");Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal
claims are dismissed before trial, the state claims should be dismissed as well.").

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Accordingly, Plaintiffs state law claims are dismissed without prejudice. 2

CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is granted in part and denied in
part. Specifically, Defendants' motion to dismiss the federal RICO claim is granted and that
claim is dismissed with prejudice. With respect to that portion of Defendants' motion that seeks
a dismissal of the state law claims on their merits, that application is denied. Rather, the Court
declines to exercise supplemental jurisdiction over the remaining state law claims and those
claims are accordingly dismissed without prejudice.
The Clerk of the Court is directed to enter judgment accordingly and to thereafter close
the file in this action.

SO ORDERED:
Dated: Central Islip, New York
October 30, 2014

s/ Leonard D. Wexler
LEONARD D. WEXLER
United States District Judge

2

"Since [New York's CPLR § 205] allow[s] a plaintiffto recommence a dismissed suit
within six months without regard to the statute of limitations,' plaintiffl] will not be prejudiced
by the dismissal of [her state law] claims." Tishman v. The Associated Press, No. 05 Civ. 4278,
2007 U.S. Dist. LEXIS 85588, at *29 (S.D.N.Y. Nov. 19, 2007) (quoting Trinidad v. N.Y City
Dep't ofCorr., 423 F. Supp. 2d 151, 169 (S.D.N.Y. 2006)) (alterations in original) (additional
citations omitted).
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