Schoolcraft v. The City Of New York et al

Filing 363

RULE 56.1 STATEMENT. Document filed by Lillian Aldana-Bernier. (Callan, Paul)

OUR FILE: 090.155440
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Docket No.: 10-CIV-6005
Plaintiff,
-againstTHE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax ID 873220, Individually
DR. ALDANA-BERNIER’S
and in his Official Capacity; ASSISTANT CHIEF
STATEMENT PURSUANT
PATROL BOROUGH BROOKLYN NORTH
TO LOCAL CIVIL RULE
GERALD NELSON, Tax ID 912370 Individually
56.1
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 WILLIAM GOUGH,
Tax ID 894025, Individually and in his Official
Capacity; SERGEANT FREDERICK SAWYER,
Shield No. 2576, 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,
Individually and in his Official Capacity, , CAPTAIN
TIMOTHY TRAINER, Tax Id. 899922, Individually and in
Their Official Capacity 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 ALDANABERNIER, Individually and in her Official Capacity and JAMAICA
HOSPITAL MEDICAL CENTER EMPLOYEES “JOHN DOE”
#1-50, Individually and in their Official Capacity (the name
John Doe being fictitious, as the true names are presently
Unknown),
Defendants.
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Defendant DR. LILIAN ALDANA-BERNIER, by her attorneys, CALLAN,
KOSTER, BRADY & NAGLER, LLP, submit this statement pursuant to Rule 56.1 of the
Local Civil Rules of the United States District Court for the Southern District of New
York to set forth the material facts as to which Dr. Aldana-Bernier contends there are no
genuine issues to be tried.
1. Plaintiff, Adrian Schoolcraft, filed his Second Amended Complaint, on September
25, 2012. (Plaintiff’s Second Amended Complaint is annexed to Declaration of Paul
Callan (hereinafter “Callan Decl.) as Exhibit A).
2. Dr. Aldana-Bernier served a timely partial motion for summary judgment to
dismiss some of plaintiff’s causes of action.
3. After Dr. Aldana-Bernier served her partial motion for summary judgment, Judge
Sweet partially granted plaintiff’s motion to amend his complaint for a third time on
January 16, 2015.

(Judge Sweet’s Opinion and Order dated January 16, 2015, is

annexed to Callan Decl. as Exhibit F).
4. Plaintiff filed his Third Amended Complaint on January 22, 2014. (Plaintiff’s Third
Amended Complaint is annexed to Callan Decl. as Exhibit G).
5. In his Third Amended Complaint, plaintiff alleges he was a New York City Police
officer assigned to the 81st precinct in October 2009.

(Plaintiff’s Second Amended

Complaint is annexed to Declaration of Paul Callan (hereinafter “Callan Decl.) at Exhibit
A at ¶¶30-32).
6. Plaintiff alleges Dr. Aldana-Bernier violated Mental Hygiene Law § 9.39(a) by
failing to perform the necessary test and examinations to determine whether plaintiff

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was either “1) a ‘substantial risk of physical harm to himself as manifested by threats or
attempts at suicide or other conduct demonstrating that he his dangerous to himself’ or
2) ‘a substantial risk of physical harm to other persons as manifested by homicidal or
other violent behavior by which others are placed in reasonable fear of serious physical
harm.” (Exhibit G at ¶204.)
7. Plaintiff also alleges Dr. Aldana-Bernier “falsified hospital reports in order to
secure plaintiffs continued confinement in the psychiatric ward when she noted
“PATIENT IS A DANGER TO HIMSELF,” without performing any medical test to
substantiate this.” (Exhibit G at ¶205).
8. Plaintiff further alleges that the NYPD defendants conspired to, and intentionally
falsified evidence and submitted it to the Jamaica Hospital staff for the sole purpose of
having plaintiff committed to its psychiatric ward. (Exhibit G at ¶210).
9. In addition, plaintiff alleges Dr. Aldana-Bernier’s actions were “taken under the
assumed governmental authority and responsibility to protect the public, in violation of
accepted medical standards and New York Mental Hygiene Law §9.39.” (Exhibit G at
§243).
10. In attempting to determine the causes of action actually plead against Dr.
Aldana-Bernier, is appears plaintiff asserts his Seventh, Eighth and Ninth claims under
§1983 against Dr. Aldana-Bernier as well as his Fourth, Fifth and Seventh claims under
New York State Law. (Exhibit G at ¶¶ 245-373).
11. Plaintiff’s Seventh Claim for Relief is for Involuntary Confinement under 42
U.S.C. §1983. (Exhibit G at ¶¶ 282-287).

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12. Plaintiff claims Dr. Aldana-Bernier “unlawfully and involuntarily confined plaintiff
to JHMC for six (6) days without plaintiff’s permission, consent or any lawful basis for
doing so, in violation of his constitutional rights as set forth in the Fourth, Fifth and
Fourteenth Amendments to the Constitution of the United States.” (Exhibit G at ¶283).
13. It is also alleged that Dr. Aldana-Bernier violated plaintiff’s rights under the New
York State Mental Hygiene Law §9.39(a) when she failed to perform the proper tests
pursuant to the aforementioned section. (Exhibit G at ¶ 284).
14. Plaintiff’s Eighth Claim for Relief is Conspiracy to Violate Plaintiff’s Civil Rights
under 42 U.S.C. § 1983. It is alleged that Dr. Aldana-Bernier conspired and acted in
concert to do whatever was necessary, lawful of not, to arrest, imprison and involuntarily
confine plaintiff. (Exhibit G at ¶¶ 288-292).
15. This included manufacturing false evidence; destroying evidence; unlawfully
entering plaintiff’s home; illegally seizing plaintiff’s property; verbally and physically
threatened plaintiff in an attempt to silence him; stalked and menaced plaintiff at his
home; and pressured, bribed, coerced and induced individuals to have plaintiff
involuntarily confined to hospital treatment without his consent or any other lawful basis
for doing so. (Exhibit G at ¶291).
16. Plaintiff’s Ninth Claim for Relief is Violation of Substantive and Procedural Due
Process under 42 U.S.C. §1983. (Exhibit G at ¶¶ 293-300).
17. The claims are Dr. Aldana-Bernier had no objective information to believe plaintiff
was a danger to himself or others and was involuntarily hospitalized for six (6) days;
never made a determination plaintiff was a danger to himself or others; unlawfully and
involuntarily confined plaintiff to Jamaica Hospital for six (6) days without plaintiff’s

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permission; forcibly restrained plaintiff; permitted forcible restraints without considering
less restrictive alternatives; and deprived him of his substantive and procedural due
process rights. (Exhibit G at ¶¶ 294-300).
18. There is no allegation that Dr. Aldana-Bernier is or was an employee of any
federal, state or local government entity. (Exhibit G).
19. Dr. Aldana-Bernier interposed an Answer to the Second Amended Complaint on
October 22, 2012. (A copy of Dr. Aldana-Bernier’s Answer to the Second Amended
Complaint is attached to Callan Decl. as Exhibit B).
20. Dr. Aldana-Bernier is a physician duly licensed to practice medicine in the State
of New York. (A copy of Dr. Aldana-Bernier’s Affidavit dated December 19, 2014 is
attached to Callan Decl. as Exhibit C) (Exhibit C at ¶1).
21. In November 2009, at all times, she was an attending psychiatrist at Jamaica
Hospital and director of the psychiatric emergency room. (Exhibit C at ¶2).
22. She was privately employed at all relevant times to the instant lawsuit. (Exhibit C
at ¶2).
23. Plaintiff,

Adrian

Schoolcraft,

first

underwent

a

psychiatric

examination/assessment at Jamaica Hospital at approximately 6:30 a.m. on November
1, 2009. He was examined by Dr. Khin Mar Lwin in the medical emergency room.
(Exhibit C at ¶3); (A copy of Jamaica Hospital Medical Records is attached to Callan
Decl. as Exhibit D) (Exhibit D at pg 4-6).
24. Dr. Lwin’s note indicated that as per a Sergeant James of the 81 st Precinct,
plaintiff complained about not feeling well the prior afternoon and left work early after
becoming agitated and cursing a supervisor. The police followed plaintiff to his home.

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Plaintiff barricaded himself in his apartment and the door had to be broken down to get
him. Plaintiff initially agreed to go with them for evaluation, but once outside, he ran and
had to be chased and brought to the medical emergency rom. (Exhibit C at ¶4; Exhibit
D at pgs 4-6).
25. Dr. Lwin’s note also indicated, again listing Sergeant James as the source, that
plaintiff was evaluated by a New York City Police Department psychiatrist and had not
been able to carry a gun or a badge for nearly a year. (Exhibit C at ¶5; Exhibit D at pgs
4-6).
26. Dr. Indira Patel, a psychiatrist at Jamaica Hospital, subsequently reviewed Dr.
Lwin’s note and concurred with Dr. Lwin’s findings. (Exhibit C at ¶6; Exhibit D at pgs 46).
27. Later that day, plaintiff was transferred to the psychiatric emergency room at
Jamaica Hospital. (Exhibit C at ¶7).
28. Dr. Tariq, a psychiatrist at Jamaica Hospital, performed a psychiatric examination
of plaintiff at approximately 12 p.m. on November 1, 2009. In the section marked chief
complaints, Dr. Tariq writes “they just came to my place and handcuffed me” and that
according to the accompanying New York City Police Department officer (Sergeant
James as per the ER consult note), plaintiff had been acting bizarre. (Exhibit C at ¶8;
Exhibit D at pgs 74-79).
29. Plaintiff was next psychiatrically examined by Dr. Slowik on November 2, 2009,
at 2:15 p.m. (Exhibit C at ¶9; Exhibit D at pg 87).
30. Dr. Aldana-Bernier examined plaintiff, Adrian Schoolcraft, at Jamaica Hospital on
November 2, 2009, at approximately 3:10 pm. (Exhibit C at ¶10).

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31. Prior to examining plaintiff, she reviewed the notes created by prior treating
physicians and nurses, including, but not limited to, Dr. Lwin, Dr. Patel, Dr. Tariq and Dr.
Slowick. (Exhibit C at ¶11).
32. Dr. Aldana-Bernier made her medical decision regarding plaintiff based on the
notes made by prior physicians and nurses as well as her own evaluation of plaintiff.
(Exhibit C at ¶12).
33. Dr. Aldana-Bernier also sought a second opinion from Dr. Dhar concerning
plaintiff. (Exhibit C at ¶13).
34. Dr. Aldana-Bernier was never told by anyone from the New York City Police
Department, or anyone acting on their behalf, to keep plaintiff at Jamaica Hospital
against his will. (Exhibit C at ¶14).
35. She never spoke with the Sergeant James, or any other officer, who is identified
in the notes of prior treating physicians. (Exhibit C at ¶15).
36. Dr. Aldana-Bernier never spoke with any police officer concerning plaintiff.
(Exhibit C at ¶16).
37. She never spoke with Dr. Catherine Lamstein, who she is advised is a
psychiatrist attached to the New York City Police Department, concerning plaintiff.
(Exhibit C at ¶17).
38. Dr. Aldana-Bernier was not, and is not, a participant in any conspiracy to keep
plaintiff at Jamaica Hospital against his will. (Exhibit C at ¶18).
39. Dr. Aldana-Bernier's medical decisions concerning plaintiff were entirely based
on her sound medical judgment. They were not influenced by her contact with anyone
from the New York City Police Department or any other state actor. (Exhibit C at ¶19).

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40. Dr. Aldana-Bernier was not pressured, encouraged or compelled by anyone from
the New York City Police Department to keep plaintiff against his will. (Exhibit C at
¶19).
41. Dr. Aldana-Bernier was not pressured, encouraged or compelled by anyone from
Jamaica Hospital to keep plaintiff there against his will. (Exhibit C at ¶20).
42. Dr. Aldana-Bernier never falsified any medical records concerning plaintiff.
(Exhibit C at ¶21).
43. Dr. Roy Lubit has been retained by plaintiff as a psychiatric expert. Pursuant to
his retention, Dr. Lubit issued an expert report. (A copy of Dr. Lubit’s report is attached
to Callan Decl. as Exhibit E.)
44. In his report, Dr. Lubit claims Dr. Aldana-Bernier committed malpractice, in part,
due to her failure to failure to gather information about Mr. Schoolcraft, including
speaking with IAB and other key collaterals such as the police. (Exhibit E at pgs 11-13).
Dated:

New York, New York
January 30, 2015
Yours, etc.,
CALLAN, KOSTER, BRADY, & NAGLER, LLP
_/s/_ Paul F. Callan _____________
By: PAUL F. CALLAN, ESQ. (PFC2005)
Of Counsel
Attorneys for Defendant
DR. LILIAN ALDANA-BERNIER
One Whitehall Street, 10th Floor
New York, New York 10004
[phone]
[e-mail]

TO:

NATHANIEL SMITH, ESQ.
111 Broadway, Suite 1305
New York, New York 10006
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[phone]
[e-mail]
Walter A. Kretz, Jr., Esq. (WK-4645)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant
DEPUTY INSPECTOR STEVEN MAURIELLO
444 Madison Avenue, 30th Floor
New York, New York 10022
[phone]
[e-mail]
Gregory J. Radomisli, Esq. (GJR2670)
MARTIN, CLEARWATER & BELL, LLP
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, New York 10017-5842
[phone]
[e-mail]
Brian E. Lee, Esq. (BL9495)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Defendant
ISAK ISAKOV
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
[phone]
[e-mail]
Ryan Shaffer
Senior Assistant Corporation Counsel
ZACHARY W. CARTER, ESQ.
CORPORATION COUNSEL OF THE CITY OF NEW YORK
Attorneys for CITY Defendants
NEW YORK CITY POLICE DEPARTMENT
Special Federal Litigation Division
New York City Law Department
100 Church Street, Room 2-124
New York, New York 10007
[phone]
[e-mail]
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