Schoolcraft v. The City Of New York et al

Filing 352

DECLARATION of Gregory J. Radomisli in Support re: 351 MOTION for Summary Judgment .. Document filed by Jamaica Hospital Medical Center. (Attachments: # 1 Exhibit LL, # 2 Exhibit MM, # 3 Exhibit NN)(Radomisli, Gregory)

GJR/da
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
—X

ADRIAN SCHOOLCRAFT,
AMENDED
DECLARATION

Plaintiff,
-againstTHE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax Id. 873220, Individually
and in his Official Capacity, ASSISTANT CHIEF
PATROL BOROUGH BROOKLYN NORTH
GERALD NELSON, Tax Id. 912370, Individually and
in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually
and in his Official Capacity CAPTAIN THEODORE
LAUTERBORN, Tax Id. 897840, Individually and in
his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official
Capacity, SGT. FREDERICK SAWYER, Shield No.
2576, Individually and in his Official Capacity,
SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax
Id. 915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id.
885374, Individually and in his Official Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004,
AND P.O.’s "JOHN DOE" #1-50, Individually and in
their Official Capacity (the name John Doe being
fictitious, as the true names are presently unknown)
(collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR.
ISAK ISAKOV, Individually and in his Official
Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Offieial Capacity and
JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and
in their Official Capacity (the name John Doe being
fictitious, as the true names are presently unloiown).

Civil Action No.:
10 CIV 6005 (RWS)

Defendants.
■X

GREGORY J. RADOMISLI, deelares the following pursuant to 28 USC §1746,
under penalty of perjury:

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1.

I am a Member of Martin Clearwater & Bell

llp,

attorneys of record for

defendant JAMAICA HOSPITAL MEDICAL CENTER and am fully familiar with the facts
and circumstances of this action by virtue of a review of the file in my office.
2.

This Amended Declaration is respectfully in support of the motion for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendant
JAMAICA HOSPITAL MEDICAL CENTER (“Jamaica Hospital”).

This Declaration

amends the Declaration dated December 22, 2014 and filed on January 5, 2015 (Doc #326). 1
3.

As discussed in detail in the accompanying Amended Memorandum of Law,

Jamaica Hospital’s motion for summary judgment should be granted for the following
reasons:
a)

In its May 5, 2011 Order, this Court granted Jamaica Hospital’s pre-

Answer motion to dismiss plaintiffs federal causes of action against Jamaica Hospital
because plaintiff failed to state a cause of action. Following discovery, plaintiff moved to file
a Third Amended Complaint, and this Court granted plaintiffs motion, allowing plaintiff to
allege that Jamaica Hospital violated plaintiffs due process rights under 42 U.S.C. §1983.
The Court also allowed the defendants to submit revised motions for summary judgment to
address the allegations in plaintiffs Third Amended Complaint.
b)

Although plaintiff may have made the necessary allegations to survive

a 12(b)(6) motion, Jamaica Hospital is entitled to summary judgment pursuant to Rule 56
because 1) Jamaica Hospital is not a “person,” and therefore cannot be directly liable under
the statute; 2) Jamaica Hospital and codefendants DR. ISAK ISAKOV (“Dr. Isakov”) and

‘ The December 22, 2014 Declaration was not filed until January 5, 2015 because there was
an issue as to whether some of the Exhibits to which the Declaration referred could be filed
under seal.
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DR. LILLIAN ALDANA-BERNIER (“Dr. Aldana-Bernier”) were not state actors; and 3)
Jamaica Hospital cannot be held vicariously liable for Dr. Isakov and/or Dr. Aldana-Bernier
because they were not acting pursuant to an official policy, as required by Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978), as applied to private entities. See e.g. Rojas
V. Alexander’s Department Stores, Inc., 924 F.2d 406, 408 (2d Cir. 1990); Green v. City of
New York, 465 F.3d 65, 82 (2d Cir. 2006).
c)

The other causes of action as to Jamaica Hospital are plaintiffs state

law claims for medical malpractice, false arrest, false imprisonment, and negligent hiring.
training or supervision;
d)

The plaintiff cannot maintain a cause of action directly against Jamaica

Hospital for medical malpractice because plaintiff does not make any allegations of medical
malpractice as to any specific members of the Jamaica Hospital staff separate from the
codefendant psychiatrists, and there are no issues of fact regarding the care rendered by the
Jamaica Hospital residents;
e)

The plaintiff cannot maintain a cause of action for false arrest or false

imprisonment because plaintiff has not presented any evidence that Jamaica Hospital
committed medical malpractice, and because plaintiffs detention was otherwise privileged;
f)

The plaintiff cannot maintain a cause of action for negligent hiring.

training, or supervision because plaintiffs Second Amended Complaint does not contain any
allegations that the codefendant psychiatrists or any of the Jamaica Hospital staff had, or
should have known of, a propensity to improperly hospitalize patients or to commit false
arrest or false imprisonment; plaintiff has not submitted any evidence of Jamaica Hospital’s
hiring, training, supervision or retention policies; and plaintiff has not alleged and cannot

2461639.1

demonstrate that any of the Jamaica Hospital staff or the codefendant psychiatrists were
acting outside the scope of their employment when they treated the plaintiff; and
g)

The plaintiff carmot maintain a cause of action for intentional infliction

of emotional distress because plaintiff cannot satisfy the elements to state a claim and because
a cause of action for intentional infliction of emotional distress is duplicative, and falls within
the ambit of plaintiffs claim for medical malpractice.
4.

Exhibits “A” through “KK” were attached to the Declaration of Gregory J.

Radomisli filed on January 5, 2015. A copy of Plaintiffs Third Amended Complaint is
attached hereto as Exhibit “LL.

A copy of the December 22, 2014 Declaration of Brian E.

Lee is attached hereto as Exhibit “MM.

A copy of the Jamaica Hospital policy on

involuntary admissions is attached hereto as Exhibit “NN.
WHEREFORE, it is respectfully requested that defendant’s motion be granted in its
entirety, together with such other and further relief as this Court deems just and proper.
New York, New York
January 30, 2015

Dated:

Yours, etc..
MARTIN CLEARWATER & BELL llp
By:
Gregi
iRadomisli (GJR-2670)
A Member of thb^irm
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, New York 10017-5842
[phone]

2461639.1