Schoolcraft v. The City Of New York et al

Filing 407

REPLY MEMORANDUM OF LAW in Support re: 351 MOTION for Summary Judgment . . Document filed by Jamaica Hospital Medical Center. (Attachments: # 1 Exhibit MM)(Radomisli, Gregory)

GJR/DA
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
•X
ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005 (RWS)
THE 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 Official
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 unknown).
Defendants.
X
REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT
BY DEFENDANT JAMAICA HOSPITAL MEDICAL CENTER

Of Counsel:

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Gregory J. Radomisli (GJR- 2670)
Brian Osterman (BO- 5881)

TABLE OF CONTENTS
TABLE OF AUTHORITIES

111

PRELIMINARY STATEMENT

1

STANDARD FOR SUMMARY JUDGMENT

1

ARGUMENT
POINT I
PLAINTIFF’S COUNTER 56.1 STATEMENT IS INADEQUATE TO
REFUTE THOSE STATEMENTS SET FORTH BY JHMC
AS FACTS WHICH ARE NOT IN DISPUTE.......................................
A.

B.

C.

D.

2

The Following Statements of Faet Must Be Deemed
Admitted Because Plaintiff Cites Evidence that is Not
in Admissible Form to Refute Defendant’s Statements,

4

The Following Statements of Fact Must Be Deemed
Admitted Because Plaintiffs “Hearsay” Objections
Are Improper.............................................................

6

The Following Statements of Fact Must Be
Deemed Admitted Because Plaintiffs Interpretation
and/or Qualification of the Evidence is Improper....

9

The Following Statements of Fact Must Be Deemed Admitted
Because Plaintiffs Claim that the Evidence Does Not Support
Them is Belied by the Evidence Cited by JHMC in Its 56.1 Statement... 12

POINT II
JAMAICA HOSPITAL IS ENTITLED TO SUMMARY JUDGMENT
ON PLAINTIFF’S §1983 CLAIMS
A.

Jamaica Hospital Medical Center Cannot Be subject
to Direct Liability Under 42 USC §1983 Because
Jamaica Hospital Medical Center Is Not a “Person
59

B.

15

Jamaica Hospital Is Entitled to Summary Judgment
On Plaintiffs Tenth Claim for Relief
1.

17

2.

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Requirements of Monell
State Action

21

1

C.

Jamaica Hospital Is Entitled to Summary Judgment
On Plaintiffs Eighth Claim for Relief Alleging
Conspiraey to Violate Plaintiffs Civil Rights.........

24

POINT III
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
DIRECTLY AGAINST JHMC FOR MEDICAL MALPRACTICE
A.

Viearious Liability for Dr. Aldana Bernier and Dr. Isakov

31

B.

Vicarious Liability for its Staff.

31

POINT IV
DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT
ON PLAINTIFF’S CAUSE OF ACTION FOR MEDICAL MALPRACTICE
BECAUSE PLAINTIFF HAS NOT DEMONSTRATED AN ISSUE OF FACT

35

POINT V
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR FALSE ARREST OR FALSE IMPRISONMENT
A.

B.

Plaintiffs Claim Must Be Dismissed Beeause
Plaintiff Cannot Demonstrate that JHMC
Committed Medical Malpractice....................
Plaintiffs Confinement was “Otherwise Privileged

36
??

36

POINT VI
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR NEGLIGENT HIRING, TRAINING OR SUPERVISION

38

POINT VII
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

40

CONCLUSION

41

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11

TABLE OF AUTHORITIES
Cases
Abramson v. Pataki,
278 F.3d 93 (2d Cir. 2002)....................................................
Adickes v. Kress & Co.,
398 U.S. 144 (1970)..............................................................

2
16,21

Algarin v. New York City Dep’t of Correction,
60 F.Supp.2d 469 (S.D.N.Y. 2006).......................................

19

Baez V. JetBlue Airways,
745 F.Supp.2d 214 (E.D.N.Y. 2010)...... .............................

39

Baity v. County ofRockland,
2014 U.S.Dist. LEXIS 145836 (S.D.N.Y. Sept. 30, 2014) .

3,4, 10

Barry v. New York City Police Dept.,
2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. April 7, 2004).....

20

Batista v. Rodriguez,
702F.2d393 (2d Cir. 1983)..................................................

17

Bender v. Lowe,
2011 U.S.Dist. LEXIS 99053 (S.DN.Y. Aug. 30, 2011)....

35

Bickerstaff v. Vassar College,
196F.3d435 (2dCir. 1999)..................................................

2

Biggs V. City ofNew York,
2010 U.S.Dist. LEXIS 1213332 (S.D.N.Y. Nov. 16, 2010)

38

Birmingham v. Ogden,
70 F.Supp.2d 353 (S.D.N.Y. 1999).......................................

21

Bloom V. Town ofStratford,
2006 WL 3388396 (D. Conn. Nov. 16, 2006).....................

21

Bouchard v. N. Y. Archdiocese,
719 F.Supp.2d 255 (S.D.N.Y. 2010)....................................

38

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111

Brentwood Academy v. Tennessee Secondary Athletic Association,
531 U.S. 288 (2001)...................... ..............................................

22

Caban v. United States,
728 F.2d 68 (2d Cir. 1984)..........

37

Celotex Corp. v. Catrett,
477 U.S. 317 (1986).....................

1

Cine SK8, Inc. v. Town ofHenrietta,
507 F.3d 778 (2d Cir. 2007)........

28

City of Los Angeles v. Heller,
475TJ.S. 796(1986)......................................

18

Costello V. New York State Nurses Association,
783 F.Supp.2d 656 (S.D.N.Y. 2011)............

3,4,9

Cress V. Wilson,
2008 U.S.Dist. LEXIS 104714 (S.D.N.Y. Dec. 29, 2008)

3

Dendariarena v. Mt. Sinai Hospital,
2012 Slip.Op. 31262(D) (N.Y.Sup. 2012)........................

32

Dilworth v. Goldberg,
914 F.Supp.2d 43 J(S.D.N.Y. 2012)

17

Dwares v. City of New York,
985F.2d94 (2d Cir. 1993).............

17

Eng V. Bellevue Hospital,
2014 U.S.Dist. LEXIS 160887 (S.D.N.Y. July 8, 2014).............................

15

Faragv. United States,
587 F.Supp.2d 436 (E.D.N.Y. 2008)........................................................... 29
Fisk V. Letterman,
401 F.Supp.2d 362 (S.D.N.Y. 2005)............................................................ 30
Folks V. New York College of Osteopathic Medicine ofNew York Institute of
Technology,
214 F.Supp.2d 273 (E.D.N.Y. 2002)...........................................................

4

Frederick v. State ofNew York,
23 Misc.3d 1008, 874 NYS2d 762 (Ct. of Claims 2009)............................. 37
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IV

Friel v. County ofNassau,
947 F.Supp.2d 239 (E.D.N.Y. 2013).......................................

20

Goenaga v. March of Dimes Birth Defects Foundation,
51F.3dl4(2d Cir. 1995).......................................................

2

Graves v. Deutsche Bank Securities, Inc.,
2012 U.S.Dist. LEXIS 174691 (S.D.N.Y. Nov. 30, 2012)......

4

Grogan v. Blooming Grove Volunteer Ambulance Corp.,
917 F.Supp.2d 283 (S.D.N.Y. 2013)......................................

24

Gurevich v. City ofNew York,
2008 U.S.Dist. LEXIS 1800 (S.D.N.Y. Jan. 10, 2008)...........

39

Hattarv. Carelli,
2012 U.S.Dist. LEXIS 12985 (S.D.N.Y. Jan. 11,2012).........

38

Hollins V. City ofNew York,
No. 10 Civ. 1650 (LGS) (S.D.N.Y. Mar. 3, 2014)..................

39

Hudson V. State of New York,
35 Misc.3d 241, 937 NYS2d 529...........................................

37

Jackson v. Metropolitan Edison Co.,
419 U.S. 345,350(1974)...................... .................................

22

Jensen v. Lane County,
222 F.3d 570 (9® Cir. 2000)....................................................

22

Jessup V. Armor Corr. Health Service, Inc.,
2014 U.S.Dist. LEXIS 61346 (E.D.N.Y. May 2, 2014)..........

21

Johnson v. Columbia University,
2003 U.S.Dist. LEXIS 20932 (S.D.N.Y. Nov. 19, 2003)........

,29

Johnson v. New York,
21 Fed. Appx. 41, 2001 WL 1205363 (2d Cir. Oct. 10, 2001)

21,29

Kia P. V. McIntyre,
235 F.3d 749 (2d Cir. 2000)...................................................

23

Kraft V. City ofNew York
696 F.Supp.2d 403 (S.D.N.Y. 2010)......................................

1,40

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V

Lovell V. Cayuga Correctional Facility,
2004 WL 2202624 (W.D.N.Y. Sept. 29, 2004).............

16

Lyman v. The New York and Presbyterian Hospital,
2014 U.S.Dist. LEXIS 95492 (S.D.N.Y. July 14, 2014)

3

Lynch v. Southampton Animal Shelter Foundation, Inc.,
971 F.Supp.2d 340 (E.D.N.Y. 2013).............................

23

Mallgren v. Burkholder,
2014 U.S.Dist. LEXIS 107256

37

Manbeck v. Micka,
640 F.Supp.2d 351 (S.D.N.Y. 2009)

29

McNenney v. Marsh & McLennan,
2015 U.S.Dist. LEXIS 8645 (S.D.N.Y. Jan. 26, 2015)

,20

Mercedes v. Farrelly,
2012 N.Y.Misc.LEXIS 2032 (N.Y. Co. May 1, 2012)

32

Michaels v. City ofNew York,
2011 U.S.Dist. LEXIS 15806 (S.D.N.Y. February 16, 2011)

17

Monell V. Dep’t of Soc. Servs. of the City ofNew York,
436 US. 658, 98 S.Ct. 2018 (1978)......................................

16, 17

Morse v. City of New York,
2001 U.S.Dist. LEXIS 12795 (S.D.N.Y. August 24, 2001)..

23

Nicholas v. City of Binghamton,
2012 U.S. Dist. LEXIS 111736 (N.D.N.Y August 7, 2012).

40

O'Gee V. Dobbs Houses, Lnc.,
570 F.2d 1084 (2dCir. 1978)

7

People V. Ely,
68 NY2d 520 (1986)

5

People V McGee
49 NY2d 48 (1979)

5

Primmer v. CBS Studios, Lnc.,
667 F.Supp.2d 248 (S.D.N.Y. 2009)

4

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VI

Reynolds v. Darrah,
2011 U.S.Dist. LEXIS 113621 (S.D.N.Y. September 30, 2011)

15

Ross University School ofMedicine, Ltd. v. Brooklyn-Queens Health Care, Inc.,
20
2013 U.S.Dist. LEXIS 45949 (E.D.N.Y. Mar. 28, 2013)
‘
Ruhlmann v. Smith
234 F.Supp.2d 140 (N.D.N.Y. 2002).............................

,23

Schlein v. Milford Hospital, Inc.,
561F.2d 427 (2d Cir. 1977)...,

24

Schoolcraft v. City of New York
2011 U.S.Dist. LEXIS 48996 (S.D.N.Y May 5, 2011).....

22

Scotto V. Almenas,
143 F.3dl05 (2d Cir. 1998).............................................

29

Scroxton v. Town of Southold,
2010 U.S.Dist. LEXIS 27659 (E.D.N.Y. March 24, 2010)

16

Singer v. Fulton County Sheriff,
63F.3dllO(2dCir. 1995)........................................

24

Smith V. County ofNassau,
34NY2d 18 (1974)...................................................

33

Suits V. WyckoffHgts. Med. Ctr.,
84 AD3d 487, 922 NYS2d 388 (1st Dept. 2011)......

32

Sybalski v. Independent Group Home Living Program,
546 F.3d 255 (2d Cir. 2008).....................................

24

Sykes v. McPhillips,
412 F.Supp.2d 197 (N.D.N.Y. 2006).........................

23, 29, 37

Tatum V. City of New York,
2009 U.S.Dist. LEXIS 3512 (S.D.N.Y. Jan. 20, 2009)
Tewksbury v. Dowling,
169 F.Supp.2d 103 (E .D.N.Y. 2001)

,22

Tsesarskaya v. City of New Fork,
843 F.Supp.2d 446 (S.D.N.Y. 2012)

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38

38

Vll

Turturro v. Continental Airlines,
334 F.Supp.2d 383 (S.D.N.Y. 2004)..................

17

United States ex rel. Romano v. N. Y, Presbyterian,
426 F.Supp.2d 174 (S.D.N.Y. 2006)..................

1

United States v. Stein,

22

541 F.3d 130 (2d Cir. 2008)..........................
Van Dunk v. Brower,

3,29

2013 U.S.Dist. LEXIS 160667 (S.D.N.Y. Nov. 7, 2013)....
Vega V. Fox,

457 F.Supp.2d 172 (S.D.N.Y. 2006)............................

21

Velez V. City ofNew York,
730F.3dl28 (2d Cir. 2013)...............................................

39

Warheitv. City ofNew York,
2006 U.S.Dist. LEXIS 58167 (S.D.N.Y. August 15, 2006)

18

Whitley v. Westchester County,
1997 U.S. Dist. LEXIS 16335 (S.D.N.Y. Oct. 22, 1997)

16

Will V. Mich. Dept, ofState Police,
491 U.S. 58 (1989).........................................................

16

Williams v. City ofMount Vernon,
428 F.Supp.2d 146 (S.D.N.Y. 2006).................................

40

Wood V. Town ofEast Hampton,
2010 U.S.Dist. LEXIS 104806 (E.D.N.Y. Sept. 30, 2010)

21

Wright V. City ofNew York,
2001 U.S.Dist. LEXIS 8923 (S.D.N.Y. July 2, 2001).......

40

Zahrey v. City ofNew York,
2009 U.S.Dist. LEXIS 31893 (S.D.N.Y. April 15, 2009).,

29

Zeakv. United States,
2015 U.S.Dist. LEXIS 6044 (S.D.N.Y. Jan. 20, 2015).....

1,2,39

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Vlll

PRELIMINARY STATEMENT
This Reply Memorandum of Law is respectfully submitted on behalf of defendant
JAMAICA HOSPITAL MEDICAL CENTER (“JHMC” or “the Hospital or “Jamaica
Hospital”) in further support of its motion for an Order dismissing plaintiffs Third Amended
Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure.

STANDARD FOR SUMMARY JUDGMENT
Plaintiffs Memorandum of Law in Opposition to JHMC’s Motion for Summary
Judgment reads like a closing argument, and is replete with references to “the evidence shows
this” or “the evidence show that.

This Court, however, should not be swayed by a

compelling narrative and repetitive phrases designed to pass for the truth. This Court will no
doubt recognize that conspicuously lacking from plaintiffs Memorandum of Law and 56.1
Statement are citations to the actual evidence that allegedly creates a question of fact, which
plaintiff must submit to oppose Jamaica Hospital’s motion.
It is the non-moving party’s burden to set forth specific facts raising a genuine issue of
fact for trial. United States ex rel. Romano v. N. Y. Presbyterian, 426 F.Supp.2d 174 (S.D.N.Y.
2006), and a party cannot avoid summary judgment “merely by vaguely asserting the
existence of some unspecified disputed material facts, or defeat the motion through mere
speculation or conjecture.” Kraft v. City of New York, 696 F.Supp.2d 403, 412 (S.D.N.Y.
2010).

The nonmoving party “must set out specific facts” and carmot rely on “mere

allegations or denials contained in the pleadings.” Zeak v. United States, 2015 U.S.Dist.
LEXIS 6044, *5 (S.D.N.Y. Jan. 20, 2015). The non-moving party is required to make a
showing sufficient to establish the existence of each element constituting its case. See Celotex
Corp. V. Catrett, All U.S. 317, 322-23 (1986) (A complete failure of proof concerning an

2475341 1

1

essential element of the non-moving party’s case necessarily renders all other facts
immaterial); Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002). If the moving party can point
to the absence of evidence to support an essential element of the non-moving party’s claim,
summary judgment should be granted.

See Goenaga v. March of Dimes Birth Defects

Foundation, 51 F.3d 14,18 (2d Cir. 1995); Zeakv. United States, 2015 U.S.Dist. LEXIS 6044
(S.D.N.Y. Jan. 20, 2015).

Statements that are devoid of specifics and evidence that is

merely colorable” are insufficient to defeat a properly supported motion for summary
judgment. See Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999).
Plaintiff has not met his burden.

Accordingly, this Court should grant JHMC

summary judgment, and dismiss plaintiffs Third Amended Complaint in its entirety.

ARGUMENT
POINT I
PLAINTIFF’S COUNTER 56.1 STATEMENT IS INADEQUATE TO
REFUTE THOSE STATEMENTS SET FORTH BY JHMC
AS FACTS WHICH ARE NOT IN DISPUTE
Pursuant to Local Civil Rule 56.1 of the Southern District of New York, a party
moving for summary judgment must submit a statement of material facts as to which it
maintains there is no genuine issue to be tried (“56.1 Statement”). The party opposing the
motion must submit a responsive statement of facts as to which that party believes a triable
issue remains. Local Civil Rule 56.1(b). Rule 56.1(d) requires that each statement of the
opposing party controverting any statement of material fact “be followed by citation to
evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)
(emphasis added).

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2

If the opposing party fails to submit a proper responsive statement (“a CounterStatement”), then the facts set forth in the moving party’s 56.1 statement can be deemed
admitted. See Local Civil Rule 56.1(a)-(c); Cress v. Wilson, 2008 U.S.Dist. LEXIS 104714
(S.D.N.Y. Dec. 29, 2008). A Counter-Statement can be improper if it does not actually
controvert the facts set forth in the moving party’s 56.1 Statement, or if the non-moving party
denies facts set forth in the moving party’s 56.1 Statement without any citations to admissible
evidence, or if the non-moving party cites evidence that does not actually support the non­
moving party’s denial. See Van Dunk v. Brower, 2013 U.S.Dist. LEXIS 160667, ’”4-5, n.3
(S.D.N.Y. Nov. 7, 2013); Costello v. New York State Nurses Association, 783 F.Supp.2d 656,
661, n.5 (S.D.N.Y. 2011) (Although plaintiffs Counter-Statement contained numbered
paragraphs corresponding to defendants’, plaintiff frequently failed to refer to evidence in the
record to support her contention that certain facts were disputed; did not specifically dispute
defendants’ statements; disputed defendants’ statements with conclusory allegations.
speculation or conjecture; or improperly contained legal arguments); Baity v. County of
Rockland, 2014 U.S.Dist. LEXIS 145836, *3 (S.D.N.Y. Sept. 30, 2014) (a number of
plaintiffs purported denials quibble with defendants’ phraseology, but do not address the
factual substance by defendants; or improperly add equivocal statements to plaintiffs denials
or admissions).
A court may consider the facts contained in the moving party’s 56.1 Statement as
admitted in the absence of an appropriate Counter-Statement. See Id.; See also Lyman v. The
New York and Presbyterian Hospital, 2014 U.S.Dist. LEXIS 95492, ’”2-3, n.l (S.D.N.Y. July
14, 2014) (Where facts stated in a party’s 56.1 Statement are supported by testimonial or
documentary evidence, and denied with only a conclusory statement by the other party, the

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3

Court finds such facts to be true); Primmer v. CBS Studios, Inc., 661 F.Supp.2d 248
(S.D.N.Y. 2009); Folks v. New York College of Osteopathic Medicine ofNew York Institute of
Technology, 214 F.Supp.2d 273, 281 (E.D.N.Y. 2002) (“The defendants are correct that the
plaintiffs Rule 56.1 statement is defective in its failure to eontrovert the material faets set
forth in the defendants Rule 56.1 statement or to eite to any admissible evidence. . . and the
facts set forth in the defendants’ Rule 56.1 statements are deemed admitted as a matter of
law”); Graves v. Deutsche Bank Securities, Inc., 2012 U.S.Dist. LEXIS 174691 (S.D.N.Y.
Nov. 30, 2012), aff’d 2013 U.S.App. LEXIS 24091 (2d Cir. Dec. 4, 2013) (the Court may
disregard any material eontained in a 56.1 Statement or Counter-Statement that is improper);
Costello V. New York State Nurses Association, supra, 783 F.Supp.2d at 661, n.5; Baity v.
County of Rockland, 2014 U.S.Dist. LEXIS 145836, *3 (S.D.N.Y. Sept. 30, 2014) (responses
that do not point to any evidence in the reeord that may create a genuine issue of material faet
do not function as denials, and will be deemed admissions of the stated fact). Significantly, in
Baity, the Court also criticized plaintiffs counsel’s attempt to introduee exhibits without any
authentieation, and therefore did not rely on those exhibits when deciding defendants’ motion
for summary judgment. 2014 U.S.Dist. LEXIS 145836, *6.

A.

The Following Statements of Fact Must Be Deemed Admitted
Because Plaintiff Cites Evidence that is Not in Admissible Form
to Refute Defendant’s Statements

In his Counter-Statement of Material Faets, plaintiffs counsel repeatedly eites the
Home Invasion Recording” as evidence to refute several of the statements in JHMC’s 56.1.
As discussed above, however, plaintiff must refer to evidenee that is in admissible form.
Admissibility of tape-reeorded conversation requires proof of the accuracy or authenticity of
the tape by "clear and convincing evidence" establishing "that the offered evidence is genuine

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4

and that there has been no tampering with it." People v. Ely, 68 NY2d 520, 527-528 (1986);
People V McGee, 49 NY2d 48, 59 (1979), cert denied sub nom. Waters v New York, 446 U.S.
942. The neeessary foundation may be provided in a number of different ways, but here.
plaintiff has not proffered any proof that the “Home Invasion Recording” is accurate and
authentic.

Accordingly, plaintiffs references to the “Home Invasion Recording” in his

Counter-Statement constitute references to inadmissible evidence (at least to the extent
plaintiff is seeking to rely on them to oppose JHMC’s motion for summary judgment), and
therefore the following statements must be deemed admitted for the purposes of this motion;
32.

Chief Marino then ordered the plaintiff to be handcuffed and
transported to the hospital because he believed the plaintiff was an
emotionally disturbed person (Exhibit P, p. 301)^ (Exhibit K, p. 155)
(Exhibit R, pp. 186-187).^*

112.

Deputy Chief Michael Marino never spoke to any personnel from
Jamaica Hospital, including anyone who treated the plaintiff (Exhibit P,
pp. 410-411).*

113.

Capt. Theodore Lauterborn never spoke to any personnel from Jamaica
Hospital, including doctors and nurses (Exhibit O, pp. 335-336).*

115.

Deputy Inspector Steven Mauriello did not have any contact with or
speak to anyone, including doctors and nurses, at Jamaica Hospital
(Exhibit MM, pp. 4-5).*

117.

Lt. Elise Hanlon never spoke with or had contact with any doctors,
nurses or anyone else at Jamaica Hospital (Exhibit S, pp. 270-271).*

119.

Lt. William Gough never spoke with anyone at Jamaica Hospital
regarding the plaintiff (Exhibit R, pp. 65-74).*

^ All references to Exhibits pertain to the Exhibits attached to the Declaration of Gregory J.
Radomisli filed on January 5, 2015 or to the Amended Declaration of Gregory J. Radomisli
filed on January 30, 2015.
^ * In addition to referring to the Home Invasion Recording, plaintiffs counsel cites his Memorandum
of Law as “evidence” that refutes JHMC’s 56.1 Statement. Obviously, plaintiffs Memorandum of
Law and the legal arguments contained therein do not constitute a citation to admissible evidence

247534U

5

121.

Sgt. Kurt Duncan never had any contact with anyone at Jamaica
Hospital (Exhibit MM, p. 9).*

122.

Lt. Christopher Brosehart did not give instructions to anyone at Jamaica
Hospital as to what to do with plaintiff (Exhibit Q, pp. 260-261), *

As with the above-referenced paragraphs, plaintiff attempts to refute the following
Statements simply by reference to his Memorandum of Law:
114.

Lt. Timothy Caughey never spoke to any personnel from Jamaica
Hospital, about the plaintiff (Exhibit MM, p. 4).

116.

Sgt. Rasheena Huffman never spoke to anyone at Jamaica Hospital
regarding the plaintiff (Exhibit N, pp. 174-175).

118.

Capt. Timothy Trainor never spoke to anyone at Jamaica Hospital
about the plaintiff (Exhibit MM, p. 6).

Given plaintiffs failure to refute any of the above-referenced statements with
evidence in admissible form, it is clear that plaintiff does not have any evidence to support
his claim for conspiracy to violate plaintiffs civil rights because the above-referenced,
undisputed facts establish that there was no contact between any of the City defendants
and any of the JHMC personnel. Similarly, those undisputed facts demonstrate that
there is no evidence that the private defendants engaged in state action. Accordingly,
plaintiffs Section 1983 claims must be dismissed.

B.

The Following Statements of Fact Must Be Deemed Admitted Because
Plaintiffs “Hearsay” Objections Are Improper

In his Counter-Statement of Material Facts, plaintiffs coimsel repeatedly invokes
hearsay” as an objection in response to several of the statements in JHMC’s Rule 56.1
Statement. However, Rule 56.1 does not provide plaintiff with that option. Accordingly, the
Statements to which plaintiff objected as “hearsay” should be deemed admitted.

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6

Although plaintiff does not specify the basis for his “hearsay” objections, they are
presumably based either on the contention that the JHMC chart itself is “hearsay,” or that the
statements contained therein are “hearsay.” Assuming plaintiff is implicitly arguing that an
appropriate Counter-Statement is not required because the Statements submihed by JHMC in
its 56.1 Statement were not in admissible form because they constituted “hearsay,” plaintiffs
objections are meritless.
Hospital records are admissible as a Business Record, pixrsuant to Rule 803(6) of the
Federal Rules of Evidence. JHMC previously produced a certified copy of the Hospital chart.
several witnesses from the Hospital authenticated the chart (See e.g., Exhibit V, pp. 18-19;
Exhibit W, pp. 37-38) and plaintiff himself filed a copy of the JHMC chart when he made his
summary judgment motion. Therefore, there can be no objection to the chart itself
With respect to the contents of the plaintiffs hospital chart, a hearsay statement "that
A) is made for- and . . . reasonably pertinent to- medical diagnosis or treatment; and B)
describes medical history; past or present symptoms or sensations; their inception; or their
general cause" is admissible as an exception to the hearsay rule. See Rule 803(4) of the
Federal Rules of Evidence.

When a physician relies on the “hearsay” statement in

formulating his or her opinion and treatment plan, then such statements are generally
admissible. See O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978). In O’Gee,
the Second Circuit held that Rule 803(4) “clearly permits the admission into evidence” what
the patient said and how he acted, so long as it was relied upon by the physician in
formulating his opinion. In this case. Dr. Aldana-Bemier testified that she relied upon the
statements by the police officers and others whose statements were recorded in the hospital
chart when she evaluated the plaintiff (See Exhibit W, p. 144-147).

2475341 1

7

Because plaintiffs

objections to the following Statements are not sufficient to refute them, they must be deemed
admitted:
41.

42.

Dr. BChin Mar Lwin, a psychiatric resident, performed the psychiatric
consultation, which had been requested because the plaintiff had been
acting “bizarre” (Exhibit U, pp. 4-6).

44.

The NYPD officers who remained with the plaintiff at that time
informed Dr. Lwin of the plaintiffs history and the events that
occurred throughout the day, and said that the plaintiff had left work
early “after getting agitated and cursing [his] supervisor” (Exhibit U,
pp. 4-6).

45.

Dr. Lwin was also told that the plaintiff had “barricaded himself’ in his
apartment, which required the NYPD to break the door down, and that
the plaintiff had initially agreed to go to the Hospital for evaluation, but
that once he was outside his house, he began to run, after which a chase
ensued, and he was brought to the ED in handcuffs (Exhibit U, pp. 4-6)
(Exhibit V, p. 45).

46.

Dr. Lwin was also advised that the plaintiff had previously been
evaluated by an NYPD psychologist and that as a result, the plaintiff
has not carried a gun or a badge for almost a year (Exhibit U, pp. 4-6).

47.

Dr. Lwin noted that while the plaintiff was in the ED before Dr. Lwin
saw him, the plaintiff had become agitated, uncooperative and verbally
abusive due to a discussion about using the telephone, and that he had
told his treating physician that “they are all against me” (Exhibit U, pp.
4-6).

61.

On November 1, 2009 at 6:58 a.m., the Psychiatric Emergency
Department was made aware that the plaintiff would be transferred
from the Medical Emergency Department (Exhibit U, p. 16).

62.

The Jamaica Hospital chart indicates that the plaintiff was admitted to
the Psychiatric Emergency Department under Dr. Aldana-Bemier’s
service on November 1, 2009, at 8:54 a.m. (Exhibit U, pp. 59-63).

71.

2475341 I

At 12:03 a.m. on November 1, Dr. Silas Nwaishieny examined the
plaintiff and requested a psychiatric consultation (Exhibit U, pp. 1314).

Dr. Tariq stated that the plaintiff was cooperative, but that he was
angry, with constricted affect (Exhibit U, pp. 74-79).

8

72.

Dr. Tariq noted that the plaintiff had paranoid and persecutory
delusions because he believed that he was being persecuted for having
reported his supervisors’ irregularities and corruptive behavior (Exhibit
U, pp. 74-79).^**

73.

Dr. Tariq also determined that the plaintiff had poor insight and
judgment (Exhibit U, pp. 74-79).

74.

Dr. Tariq diagnosed the plaintiff as suffering from Psychosis, NOS,
Rule Out Schizophrenia, Paranoid Type (Exhibit U, pp. 74-79).

76.

At 15:38 and at 5:54, it was noted that the plaintiff had spoken with his
father on the telephone (Exhibit U, p. 82).

82.

Dr. Aldana-Bernier indicated that she agreed with the previous
evaluation by resident Dr. Tariq (Exhibit U, pp. 57-58) (Exhibit W, pp.
167 and 193).

Given plaintiffs failure to refute any of the above-referenced statements with
evidence in admissible form, this Court must accept as true the information provided to the
JHMC residents and the diagnoses they made based thereon, all of which demonstrate that
they had a reasonable basis to eonelude that the plaintiff needed observation and to
refer him to the Psychiatric Emergency Department for further evaluation and,
ultimately, justify his admission.

C.

The Following Statements of Fact Must Be Deemed Admitted Because
Plaintiffs Interpretation and/or Qualification of the Evidence is Improper

In his Counter-Statement of Material Facts, plaintiffs counsel either qualifies the
following Statements of Fact, renders his own “spin” on those facts, or adds gratuitous
comments in response to those facts, all of which is improper, particularly in the absence of
citations to admissible evidence. See Costello v. New York State Nurses Association, 783

3

In addition to objecting on the grounds of “hearsay,” plaintiffs counsel also “denied the
conclusions.” Although plaintiff may disagree with the conclusions drawn, there is no issue of fact as
to what Dr. Tariq diagnosed.

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9

F.Supp.2d 656, 661, n.5, supra\ Baity v. County of Rockland, 2014 U.S.Dist. LEXIS 145836
*3 (S.D.N.Y. Sept. 30, 2014). Therefore, the following Statements must be deemed admitted:
7.

8.

Those issues stemmed from the plaintiffs “anxiety secondary to the
stress on the job” {Id., p. 87).

9.

Dr. Lamstein evaluated the plaintiff and recommended cognitive
behavioral therapy {Id., p. 106).

10.

Dr. Lamstein also recommended that the plaintiff see a psychiatrist for
an evaluation because two previous doctors had prescribed him
psychiatric medication, one of which was an antipsychotic. {Id., pp.
113,149).

13.

The plaintiff left work early on October 31, 2009, but he failed to
obtain the requisite permission necessary to leave work early, thereby
failing to follow required police procedure (Exhibit O, pp. 235-236)
(Exhibit K, p. 121) (Exhibit N, pp. 68, 73).

14.

The plaintiff dropped a sick report on the lap of the precinct’s Desk
Sergeant, Sergeant Rasheena Huffman, walked away, and left the
precinct {Id., p. 73).

16.

A number of his fellow officers began an investigation into his absence
and arrived at his residence (Exhibit O, pp. 237 and 289-290) (Exhibit
K, p. 132) (Exhibit P, p. 238).

18.

The officers became worried about the plaintiffs well-being {Id., pp.
111-112).

27.

He was examined by an Emergency Medical Service Crew member
(Exhibit S, p. 109), and it was recommended that he go to the hospital
(Exhibit S, p. 114) (Exhibit Q, p. 164) (Exhibit R, p. 166) because he
had high blood pressure (Exhibit R, p. 166) (Exhibit S, pp. 95 and 113)
(Exhibit T, p. 96).

28.

2475341_1

In April 2009, the plaintiff was referred to Dr. Catherine Lamstein, a
psychologist who worked at the New York City Police Department,
because he was suffering from “psychological issues” (Exhibit M, pp.
84 and 102).

The plaintiff agreed to go to the hospital and voluntarily walked to the
ambulance, which was located on the street outside his apartment
(Exhibit R, p. 166) (Exhibit S, p. 161). Upon reaching the ambulance.

10

the plaintiff turned around and returned to his second floor apartment
(Exhibit S, p. 130) (Exhibit R, p. 177).
50.

Dr. Lwin determined that the plaintiffs memory and concentration
were intact, that he was alert and oriented, but that his insight and
judgment were impaired (Exhibit U, p. 6).

51.

Dr. Lwin diagnosed the plaintiff with a Psychotic Disorder, Not
Otherwise Specified (“NOS”) (Exhibit U, p. 6).

52.

Dr. Lwin recommended continued one-to-one observation due to the
plaintiffs unpredictable behavior and escape risk (Exhibit U, p. 6.).

53.

Dr. Lwin also recommended that the plaintiff be transferred to the
Psychiatric Emergency Room for further observation after he was
medically cleared (Exhibit U, p. 6.) (Exhibit V, p. 47).

54.

Dr. Indira Patel, a psychiatric attending physician, confirmed Dr.
Lwin’s diagnosis and treatment recommendations (Exhibit V, p. 47). A
6:30 a.m. note indicates that Dr. Lwin discussed the case with the
attending physician, and that he concurred with the diagnosis and
treatment recommendations {Id.) (Exhibit U, pp. 4-6) (Exhibit BB, p.
37).

79.

After the plaintiff was transferred to the Psychiatric ED, codefendant
Dr. Lilian Aldana-Bernier took over his care as the attending
psychiatrist while he was in the Psychiatric ED prior to his admission
to the psychiatric unit (Exhibit W, p. 322).

81.

Dr. Aldana-Bernier determined that the plaintiff was a danger to
himself because he was psychotic and paranoid, and would benefit
from in-patient stabilization (Exhibit U, pp. 57-58) (Exhibit W, pp. 198
and 217).

83.

On November 3, 2009 at 1:20 p.m., codefendant Dr. Lilian AldanaBernier completed the Emergency Admission Form pursuant to Mental
Hygiene Law §9.39 (Exhibit U, pp. 57-58).

91.

Dr. Isakov found the plaintiff to be suspicious, guarded, restless, and
demanding to be discharged (Exhibit U, p. 95)."^

*** Plaintiffs counsel refers to his expert’s report as alleged evidence refuting Dr. Isakov’s state of
mind, which is not evidence in admissible form.

2475341_1

11

92.

The plaintiff denied suicidal and homicidal ideation, but Dr. Isakov
noted that the plaintiff expressed questionably paranoid ideas about
conspiracies and cover-ups in his precinct (Exhibit U, p. 95).

93.

Dr. Isakov noted that the plaintiffs cognition and memory were intact,
but that his judgment and insight were limited (Exhibit U, p. 95).

94.

Dr. Isakov’s diagnosis was Psychosis NOS, Rule Out Adjustment
Disorder with Anxiety (Exhibit U, p. 95).***

95.

On November 5, 2009, Dr. Isakov performed an evaluation of the
plaintiff (Exhibit U, pp. 97-98).***

98.

On November 6, 2009, Dr. Isakov performed an evaluation of the
plaintiff (Exhibit U, p. 99). ***

109.

The Policies and Procedures regarding restraints are from the Policy
and Procedure Manual from the Psychiatric Emergency Department of
Jamaica Hospital (Exhibit HH, p. 1).

no.

A physician in the Medical Emergency Department has authority to
keep a patient under observation (Exhibit II, p. 153).

111.

The written policy of Jamaica Hospital Medical Center contains
language regarding the criteria for involuntary hospitalization that is
identical to the language in the Mental Hygiene Law (Exhibits NN and
II).

Given plaintiffs failure to refute any of the above-referenced statements with
evidence in admissible form, this Court must aceept those statements as true, all of which
demonstrate that the plaintiff was appropriately evaluated and admitted to Jamaiea
Hospital. Accordingly, JHMC is entitled to summary judgment on all of plaintiffs claims for
relief
D.

The Following Statements of Fact Must Be Deemed Admitted Because
Plaintiffs Claim that the Evidence Does Not Support Them is Belied by the
Evidence Cited by JHMC in Its 56.1 Statement

In his Counter-Statement of Material Facts, plaintiffs counsel claims that the
evidence does not support” the following Statements of Fact, but plaintiffs coxmsel does not

2475341 1

12

cite any evidence contradicting those Statements, whereas JHMC cited specific support for
those Statements in the record. A review of the sources cited by JHMC will verify that the
evidence supports the Statements asserted. Because plaintiff does not present any evidence to
the contrary, the following Statements must be deemed admitted:
30.

42.

Dr. Khin Mar Lwin, a psychiatric resident, performed the psychiatric
consultation, which had been requested because the plaintiff had been
acting “bizarre” (Exhibit U, pp. 4-6).

55.

The plaintiff himself expressed that he had no complaints with regard
to the care and treatment rendered by Dr. Lwin (Exhibit L, p. 497).

56.

As the attending physician in charge of the plaintiff at this time. Dr.
Patel had the ultimate responsibility and was the decision-maker with
regard to the plaintiffs care (Exhibit V, pp. 39-41 and 47) (Exhibit W,
pp. 320-321). Dr. Lwin, as the resident, could not make a decision with
regard to the plaintiffs care without the approval of the attending
physician (Exhibit V, pp. 39-41 and 476) (Exhibit W, pp. 320-321).

57.

At 6:56 a.m.. Dr. Nwaishienyi indicated that the plaintiff would be
transferred to the Psychiatric Emergency Department (Exhibit U, p.
14).

58.

Plaintiffs chart from the Medical Emergency Department indicates that
the physicians thought that the plaintiff had been arrested (Exhibit U,
pp. 4 and 13) (Exhibit V, p. 43).

66.

Dr. Khwaja Khusro Tariq, a resident physician, performed a psychiatric
consultation in the Psychiatric Emergency Department at 12:00 p.m.
(Exhibit U,pp. 74-79).

69.

The plaintiff told Dr. Tariq the he has been reporting irregularities at
work to Internal Affairs for over a year, that his supervisors had been
under-reporting crime statistics to advance their careers, that he had
documentary proof thereof, and that, as a result, he was being
“persecuted” (Exhibit U, pp. 74-79).

77.

2475341J

The EMS personnel remained by the ambulance, and did not enter the
plaintiffs apartment again (Exhibit S, p. 193) (Exhibit T, pp. 114 and
118-119).

On November 2, 2009, the plaintiff was examined by Dr. Heron, who
noted that the plaintiff had been taken to the Hospital because the

13

NYPD thought he was paranoid and was a danger to himself (Exhibit
U, pp. 64-67).
80.

81.

Dr. Aldana-Bernier determined that the plaintiff was a danger to
himself because he was psychotic and paranoid, and would benefit
from in-patient stabilization (Exhibit U, pp. 57-58) (Exhibit W, pp. 198
and 217).

88.

To obtain the information for the basis of his note. Dr. Isakov spoke to
a social worker who previously evaluated the plaintiff, spoke to the
plaintiffs father, and evaluated the plaintiff himself (Exhibit X, pp.
144-145).

90.

The plaintiff told Dr. Isakov that his gun had been taken away from
him after a psychiatric evaluation was performed by an NYPD
psychologist, and that, since then, he has started to collect the
“evidence” to “prove his point,” but then he became suspicious that
“they are after him” (Exhibit U, p. 94).

96.

Dr. Isakov noted that although the plaintiff “reiterated his story” and
still wanted “to take steps/action against his precinct,” he did not
express any physical threats to anyone (Exhibit U, pp. 97-98).

97.

The plaintiff refused to give permission for anyone at Jamaica Hospital
to speak with the police psychiatrist who had previously evaluated him,
but he agreed to see a psychotherapist after he was discharged (Exhibit
U, pp. 97-98).

102.

Dr. Isakov discharged the plaintiff with a recommendation to follow up
with a psychotherapist and, if he became symptomatic, to see a
psychiatrist for medication (Exhibit U, pp. 41-42).

103.

Dr. Isakov’s discharge diagnosis was Adjustment Disorder with
Anxious Mood (Exhibit U, pp. 41-42).

104.

The plaintiff verbalized an understanding of the recommendation and
was discharged on his own on November 6, 2009 (Exhibit U, p. 43).

105.

2475341_1

As the plaintiffs attending, Dr. Aldana-Bernier supervised the
residents who evaluated the plaintiff in the Emergency Room prior to
admission, as she had the ultimate responsibility to care for the plaintiff
during her shift (Exhibit W, pp. 320-321).

After his discharge from Jamaica Hospital on November 6, the plaintiff
treated on only one occasion with private physician Dr. Steven Luell
(Exhibit L, p. 417) (Exhibit U, p. 46) (Exhibit Y, p. 1).

14

Given plaintiffs failure to refute any of the above-referenced statements by citing
evidence to the contrary, this Court must accept those statements as true, ail of which
demonstrate that the plaintiff was appropriately evaluated and admitted to Jamaica
Hospital. Accordingly, JHMC is entitled to summary judgment on all of plaintiffs claims for
relief.
POINT II
JAMAICA HOSPITAL IS ENTITLED TO SUMMARY JUDGMENT
ON PLAINTIFF’S §1983 CLAIMS
A.

Jamaica Hospital Medical Center Carmot Be Subject
to Direct Liability Under 42 USC §1983 Because
Jamaica Hospital Medical Center Is Not a “Person.”^

Plaintiffs Seventh and Ninth Claims for relief sound in, respectively. Involuntary
Confinement under 42 USC §1983 (Exhibit LL, |^282-287) and Violation of Substantive and
Procedural Due Process under 42 USC §1983 (Exhibit LL, 1^293-300).
A §1983 action can only be maintained against a “person” who has deprived another of
his or her constitutional rights. See e.g. Reynolds v. Darrah, 2011 U.S.Dist. LEXIS 113621
(S.D.N.Y. September 30, 2011). As the Court noted in Reynolds, “Jails, courts, corporations
and law firms are not ‘persons’ within the meaning of §1983.” 2011 U.S.Dist. LEXIS 113621
at *3. In Eng v. Bellevue Hospital, 2014 U.S.Dist. LEXIS 160887 (S.D.N.Y. July 8, 2014),
this Court dismissed plaintiffs claims for violation of his civil rights against Bellevue
Hospital because it found that “a hospital is not a ‘person’ under 42 U.S.C. §1983.
U.S.Dist. LEXIS 160887 at *12 (emphasis added).

Plaintiffs characterization of those

holdings as dicta is simply wrong.

^ JHMC is not making any argument that the plaintiff sued the wrong entity.

2475341 1

15

2014

Plaintiffs counsel’s citation to Willv. Mich. Dept, of State Police, 491 U.S. 58 (1989),
and his claim that there are “countless decisions under Section 1983 that hold that private
entities are proper defendants under the statute” (p. 100, plaintiffs Memo of Law) (“MOL”)
do not support plaintiffs position. In Will, the United States Supreme Court held that “neither
a State nor its offieials acting in their offieial capacities are ‘persons’ under §1983.” 491 U.S.
at 71. Not only did that case have nothing to do with private entities, the proposition for
which plaintiff cites it, but it also confirmed that entities are not “persons” under the statute.
Similarly, plaintiffs citation to Adickes v. Kress & Co., 398 U.S. 144 (1970) does not have
any pertinenee to JHMC’s argument that it cannot be subjeet to liability under 42 USC
Seetion 1983 as a “person” because in that case, the issue was whether the individual
defendant (the owner of a department store) was acting pursuant to “a state-enforced custom
requiring raeial segregation

not whether an entity can be a “person” under the statute. 398

U.S. at 148.
In his Memorandum of Law, plaintiff repeatedly glosses over the distinction between
individuals, against whom a Section 1983 claim can be brought, and an institution or entity.
against which a 1983 action can be brought only under Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978). That distinetion is critical. And so
there is no misunderstanding: JHMC is not arguing that it cannot be subject to liability
pursuant to Monell if plaintiff makes the requisite showing (which, as discussed infra, he does
not). Rather, JHMC submits that, as a matter of law, it cannot otherwise be subject to liability
® Significantly, plaintiffs counsel does not cite a single decision among those “countless decisions” to
support his position. Although JHMC cited two cases in its Memorandum of Law, the following are a
few of the “countless decisions” that demonstrate JHMC is not a person subject to §1983 liability:
Scroxton v. Town of Southold, 2010 U.S.Dist. LEXIS 27659 (E.D.N.Y. March 24, 2010); Lovell v.
Cayuga Correctional Facility, 2004 WL 2202624, *5 (W.D.N.Y. Sept. 29, 2004); See also Whitley v.
Westchester County, 1997 U.S. Dist. LEXIS 16335, *20 (S.D.N.Y. Oct. 22, 1997).

2475341J

16

under 42 USC §1983. See e.g. Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993)
(reversing dismissal of Section 1983 claims against the individual defendants, but affirming
the dismissal as to the City of New York); Turturro v. Continental Airlines, 334 F.Supp.2d
383, 392 (S.D.N.Y. 2004). The cases plaintiff cites are inapplicable because those cases
concerned state action between state actors and private individuals: not private entities.
In this case, plaintiffs Seventh Claim for Relief is for “Involuntary Confinement
Under 42 U.S.C. Section 1983” and plaintiffs Ninth Claim for Relief is for “Violation of
Substantive and Procedural Due Process Under 42 U.S.C. Section 1983.

Neither of those

claims for relief is based upon Monell. Therefore, the Seventh and Ninth Claims for Relief
must be dismissed against Jamaica Hospital Medical Center.

B.

Jamaica Hospital Is Entitled to Summary Judgment
On Plaintiffs Tenth Claim for Relief
1.

Requirements of Monell

Plaintiffs Tenth Claim for Relief sounds in “Municipal Liability.

Presumably,

plaintiff is trying to hold Jamaica Hospital liable under Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978), as applied to private parties. To
prevail on a claim against the Hospital under a Monell theory, plaintiff would have to prove
three elements: “1) an official policy or custom that 2) cause[d] the plaintiff to be subjected
to 3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.
1983); see also Dilworth v. Goldberg, 914 F.Supp.2d 433, 452 (S.D.N.Y. 2012)^ (In the

’ Defendant JHMC adopts and incorporates by reference the arguments advanced by co-defendants Dr.
Isak Isakov and Dr. Aldana-Bemier in their Memoranda of Law in support of their summary judgment
motions to the extent they argue that neither physician was a state actor and therefore could not have
deprived the plaintiff of due process. If this Court grants their motions, JHMC cannot be held liable
under Monell. See Michaels v. City ofNew York, 2011 U.S.Dist. LEXIS 15806 (S.D.N.Y. February 16,
2011) (Absent a constitutional violation, no Monell liability can attach, even if plaintiff can
2475341 1

17

context of private aetors, private employers are not vieariously liable under §1983 for the
eonstitutional torts of their employees “absent allegations of eonduet pursuant to an offieial
policy”).
As this Court noted in Warheit v. City of New York, 2006 U.S.Dist. LEXIS 58167
(S.D.N.Y. August 15, 2006), in order to sustain a Monell claim alleging violation of §1983
against a hospital for involuntary committing him, the plaintiff would have to establish a
policy or custom
to involuntarily commit patients to the hospital in violation of their
substantive and procedural due process rights. This would require proof of
a written directive or regulation by [defendant], an act by an [sic]
policymaking employee at [defendant hospital], or apraetice so widespread
that it has the force of law at [the defendant hospital]. [Plaintiff]
establishes none of these. All [plaintiff] pleads is that a number of
physicians at [defendant hospital], none of whom worked in a
polieymaking capaeity, committed him to [defendant hospital] on an
emergency basis pursuant to New York’s Mental Hygiene Law. ... A
single incident by persons without polieymaking authority cannot create
liability under Monell. Were the Court to hold differently, it would in
essenee be holding [defendant hospital] liable in respondeat superior for
the eonduet of its employees. This is exaetly what Monell forbids.
Warheit dXm-3%.
In his Memorandum of Law in Opposition to JHMC’s motion, plaintiff does not
indicate whether he is trying to hold JHMC liable under Monell based upon a written
directive, an act by a policymaking employee, or a practice so widespread that it has the force
of law. Significantly, in his Opposition, plaintiffs counsel did even not address JHMC’s
arguments in its 1/30/15 Memorandum of Law that it caimot be subject to liability under
Monell because the Hospital’s written policy conformed with the Mental Hygiene Law; that
neither Dr. Aldana-Bemier nor Dr. Isakaov had authority to make policy; and that plaintiff
demonstrate the existence of a municipal policy or practice); see also City of Los Angeles v. Heller,
475 U.S. 796 (1986).

2475341 1

18

has no evidence to suggest that improperly involuntarily hospitalizing patients was a
widespread custom. Rather, the only argument plaintiffs coxmsel advances in opposition to
that portion of JHMC’s motion seeking to dismiss plaintiffs Monell claim is that Dr. Dhar
allegedly testified about the Hospital’s policy on involuntary commitment and that his
testimony is sufficient to defeat the Hospital’s motion.
Presumably, then, given that there is no dispute that Jamaica Hospital’s written policy
conformed with the Mental Hygiene Law, that neither Dr. Aldana-Bernier or Dr. Isakov had
policymaking authority, and that Dr. Dhar did not hospitalize the plaintiff himself (regardless
of whether he could be considered a final policymaker), plaintiffs claim is based upon a
widespread custom”, emanating from Dr. Dhar’s deposition testimony allegedly establishing
that the Hospital had an “unspoken policy” of allowing a patient to be involuntarily
hospitalized based upon the belief that the patient is a “potential” danger to himself or others,
as opposed to a “substantial” danger and that that policy is, ipso facto, unconstitutional.
Although plaintiff accuses JHMC of trying to “run away” from Dr. Dhar’s testimony
(plaintiffs MOL, p. 110), or of trying to claim that it should not be bound thereby (plaintiffs
MOL, p. Ill), or that he lacked authority to speak on behalf of JHMC (plaintiffs MOL, p.
111), plaintiffs counsel misconstrues the Hospital’s argument. Rather, as this Court held in
Algarin v. New York City Dep’t of Correction, 460 F.Supp.2d 469, 475 (S.D.N.Y. 2006);
[T]he requirements of the MHL do not govern a due process claim, either under
the federal or New York State constitutions. Rather, under both constitutions, due
process permits any physician to compel the involuntary hospitalization of a
person when the physician, “on the basis of substantive and procedural criteria
that are not substantially below the standards generally accepted in the medical
community” finds the person to be a danger to himself or others [citation
omitted]. Although the Second Circuit Court of Appeals has found compliance
with the MHL sufficient to meet the requirements of due process. . . it has never
found that compliance with the MHL is a necessary condition to guaranteeing due
process in such circumstances. This is because the constitutionality, vel non, of

2475341J

19

an involuntary commitment is assessed on the basis of whether a physician
determines dangerousness according to standards generally accepted in the
medical community and the MHL does not set those standards.
Aceordingly, plaintiff cannot rely on Dr. Dhar’s testimony as establishing a
constitutional violation as a matter of law. Therefore, plaintiff and must proffer direet or
circumstantial evidence that suggests a pattern of miseonduct from which it may be inferred
that deeision makers approved of or acquiesced in the allegedly unconstitutional acts. Barry
V. New York City Police Dept., 2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. April 7, 2004).
Plaintiff has not presented any such evidence and, consequently JHMC is entitled to summary
judgment.
Furthermore, it is not suffieient for plaintiff to demonstrate that the Hospital
implemented an unconstitutional policy or custom. Rather, he must also demonstrate that
there is a “casual connection^—an affirmative link—^between the policy and the deprivation of
the constitutional rights.

Friel v. County of Nassau, 947 F.Supp.2d 239, 249 (E.D.N.Y.

2013) {citing Vippolis v. Village ofHaverstraw, 768 F.2d 40, 44 (2d Cir. 1985)). In this case.
plaintiff claims that the JHMC personnel and the NYPD had a pre-arranged plan to have him
committed. Therefore, there simply cannot be any causal link between Jamaica Hospital’s
alleged policy and plaintiffs hospitalization and retention because, based upon plaintiffs own
theory of the ease, he was not hospitalized pursuant to that policy.
* Conversely, if the plaintiff was hospitalized pursuant to an unconstitutional policy, then plaintiff
cannot demonstrate state action. Given that this is a motion for summary judgment, plaintiff must lay
bare his proof and cannot present competing theories. See McNenney v. Marsh & McLennan, 2015
U.S.Dist. LEXIS 8645, *16, n.7 (S.D.N.Y. Jan. 26, 2015) (A party may not maintain inconsistent
factual positions at summary judgment); Ross University School of Medicine, Ltd. v. Brooklyn-Queens
Health Care, Inc., 2013 U.S.Dist. LEXIS 45949, *60 (E.D.N.Y. Mar. 28, 2013) (Although a party
may plead inconsistent theories of recovery, because a summary judgment motion is the procedural
equivalent of trial in New York, a litigant must elect among inconsistent positions). In this case,
plaintiffs theories are mutually exclusive, and plaintiff has not presented any evidence to support
either one of them.

2475341 1

20

As in Wood v. Town of East Hampton, 2010 U.S.Dist. LEXIS 104806 (E.D.N.Y. Sept.
30, 2010) and Birmingham v. Ogden, 70 F.Supp.2d 353 (S.D.N.Y. 1999), plaintiff has
'alleged a set of faetual eircumstances that are eertainly unique to him.” Wood, at *71 {citing
Birmingham, 70 F.Supp.2d at 373). As such, plaintiffs claim under Monell cannot stand. See
also Johnson v. New York, 21 Fed. Appx. 41, 2001 WE 1205363, *2 (2d Cir. Oct. 10, 2001);
Bloom V. Town of Stratford, 2006 WE 3388396, *12 (D. Conn. Nov. 16, 2006) (dismissing
Section 1983 claim against town when plaintiffs theory that the town ratified and became
complicit in town employee’s personal vendetta against plaintiff was not founded on any
evidence of such a policy or custom). Accordingly, plaintiff cannot maintain a Monell claim
against JHMC, and the Hospital should he granted summary judgment on plaintiffs Tenth
Claim for Relief.
2.

State Action

Even if plaintiff could establish a question of fact as to whether Dr. Dhar’s testimony
is sufficient to establish an unconstitutional policy, JHMC is entitled to summary judgment
because the plaintiff cannot present any evidence of state action. “State involvement” must be
shown to sustain a Monell claim. See Adickes, supra, 398 U.S. at 166; Jessup v. Armor Corr.
Health Service, Inc., 2014 U.S.Dist. LEXIS 61346, *5-6 (E.D.N.Y. May 2, 2014) (A private
employer “acting under color of state law may be held liable under Section 1983 for the acts
of its employees where the unconstitutional act was authorized or undertaken pursuant to the
official policy of the private entity employer and the employer was jointly engaged with state
officials or tis conduct is chargeable to the state” (emphasis added). The ultimate resolution
of whether an actor was functioning under color of law, or as a state actor, is a question of law
for the Court. Vega v. Fox, 457 F.Supp.2d 172, 180-181 (S.D.N.Y. 2006) {citing Blum v.

2475341 1

21

Yaretsky, 457 U.S. 991, 997 (1982)); see also United States v. Stein, 541 F.3d 130, 148 (2d
Cir. 2008).
Plaintiff argues that state action exists because “of the significant encouragement by
the NYPD and the EMTs to Jamaica Hospital’s other staff to involuntarily commit him”
(Plaintiffs MOL, p. 105).^

There is no dispute, however, that the only physician who

involuntarily hospitalized the plaintiff was Dr. Aldana-Bemier. There is no question of fact
as to the absence of involvement by any other JHMC staff member in that ultimate decision.

10

Therefore, even if this Court were to accept that there was a “sufficiently close nexus between
the state and the private actor ‘so that the action of the latter may be fairly treated as that of
the State itself”.

11

or whether the decision to involuntarily hospitalize the plaintiff was a

result of the “State’s exercise of coercive power,’
encouragemenf

13

12

or because the State provided “significant

to compel plaintiffs involuntary hospitalization, the only “private actor’

whose decision is at issue in this case is Dr. Aldana-Bemier-

not any of the other JHMC

staff 14 Because no reasonable juror could find that the State “was responsible for the specific

® See discussion infra regarding the absence of state action between the EMTs and the NYPD.
However, even if there were state action between the EMTs and the NYPD, plaintiffs Monell theory
arises out of the claim that JHMC’s policy on involuntary commitment was unconstitutional—
plaintiff is not making any claims regarding a policy in relation to the conduct of the EMTs.
10

Plaintiffs quotation of this Court’s comment in Schoolcraft v. City of New York, 2011 U.S.Dist.
LEXIS 48996 at *7-8, n.2 (S.D.N.Y May 5, 2011) is meaningless because that comment was made in
the context of a motion to dismiss under F.R.C.P. 12(b)(6), whereas this Court must now consider
whether plaintiff has amassed sufficient proof to actually support his speculative allegations.
11

Jensen v. Lane County, 222 F.3d 570, 575 (9* Cir. 2000) (citing Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 350 (1974)).
12

Brentwood Academy V. Tennessee Secondary Athletic Association, 531 U.S. 288,298 (2001).

13

Id.

14

The cases plaintiffs counsel cites for the proposition that JFIMC, as an entity, engaged in state
action are inapposite. In Tewksbury v. Dowling, 169 F.Supp.2d 103 (E.D.N.Y. 2001), for example, St.
John’s Episcopal Hospital was not even a named defendant when the Court rendered its decision on

2475341J

22

conduct of which the plaintiff complains” to the extent sueh eonduct is attrihutahle to Jamaiea
Hospital, summary judgment as to JHMC is appropriate. See Lynch v. Southampton Animal
Shelter Foundation, Inc., 971 F.Supp.2d 340, 349 (E.D.N.Y. 2013) (eitations omitted).
The interaetions between the NYPD and the Hospital staff to which plaintiffs counsel
refers in his Memorandum of Law are also insufficient to establish state action. As this Court
recognized in Sykes v. McPhillips, 412 F.Supp.2d 197, 202 (S.D.N.Y. 2006), “Plaintiff points
out that the Hospital accommodated the partieular security measures charaeteristic to
ineareeration, but this eonduet is really nothing more than the eommon sense aceommodation
of security officers in the proximity of a patient.” Similarly, in Morse v. City of New York,
2001 U.S.Dist. LEXIS 12795, *20 (S.D.N.Y. August 24, 2001), this Court held “The faet that
[plaintiff] was brought to the hospital from police custody and was released from the hospital
into police custody is insufficient to transform this private hospital and its staff into state
actors for Section 1983 purposes.” Furthermore, while plaintiff and his experts may disagree
with the assessments made by the medical defendants, there is no question that the plaintiff
was in the hospital for medical and/or psychiatric treatment. Thus, the Hospital staffs alleged
failure to discharge the plaintiff was “undertaken in its role as a private medieal provider, and
were not state actions subject to liability under Section 1983.

Kia P. V. McIntyre, 235 F.3d

749, 756 (2d Cir. 2000).
Regardless of whether this Court aecepts plaintiffs arguments regarding state action
between the NYPD and JHMC personnel, for plaintiff to prevail on a Monell theory arising
out of JHMC’s poliey on involxmtarily hospitalizing patients, he must present evidenee that
defendants’ motion for summary judgment. 169 F.Supp.2d at 105, n.l. Similarly, in Ruhlmann v.
Smith, 234 F.Supp.2d 140 (N.D.N.Y. 2002), one of the issues was whether the decisions by private
individuals had been compelled by the state. Therefore, the holding in Ruhlmann does not apply to the
Hospital’s motion.

2475341 1

23

there is a connection between that policy and state action. See Sybalski v. Independent Group
Home Living Program, 546 F.3d 255, 257-258 (2d Cir. 2008) (“It is not enough, however, for
a plaintiff to plead state involvement in ‘some activity of the institution alleged to have
inflicted injury upon a plaintiff;’ rather, the plaintiff must allege that the state was involved
‘with the activity that caused the injury’ giving rise to the action” {citing Schlein v. Milford
Hospital, Inc., 561 F.2d 427, 428 (2d Cir. 1977)); see also Grogan v. Blooming Grove
Volunteer Ambulance Corp., 917 F.Supp.2d 283, 287-88 (S.D.N.Y. 2013) (“under any test.
plaintiff must establish that the state was involved in the specific activity giving rise to her
cause of action; it is not enough to show merely that the state was involved in some aspect of
the private entity’s affairs”).

Plaintiff has not presented any evidence linking Jamaica

Hospital’s allegedly unconstitutional policy on involuntary commitment with state action.
Therefore, plaintiffs Tenth Claim for Relief must be dismissed.

C.

Jamaica Hospital Is Entitled to Summary Judgment
On Plaintiffs Eighth Claim for Relief Alleginj
Conspiracy to Violate Plaintiffs Civil Rights^

Plaintiffs counsel argues extensively that state action and a conspiracy exist because
the Jamaica Hospital Emergency Medical Technicians (“EMTs”) “made the joint decision
with the NYPD and the FDNY to declare Officer Schoolcraft an ‘EDP’ and take him to the
hospital against his will to be psychiatrically evaluated” (Plaintiffs MOL, p. 101; see also p.
103, 105). That statement is simply not true, and there is absolutely no evidence to support it.
To the contrary, the evidence demonstrates that the EMTs did not have any role in declaring

If the Court finds that JHMC did not violate plaintiffs eonstitutional rights, then it should
automatically dismiss plaintiffs conspiracy claim because a claim of conspiracy to violate a
constitutional right cannot be maintained if a constitutional right was not violated. See e.g. Singer v.
Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir, 1995).

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24

Schoolcraft an EDP. Indeed, in his Counter 56.1 Statement, plaintiff states, “Agreed that DI
Mauriello was not physically present in Offieer Schoolcraft’s bedroom when AC Marino
deelared him an EDP” (p. 61, emphasis added).

Even if plaintiff had not admitted that

Marino declared Schoolcraft to be an EDP, the deposition testimony is unequivocal and
undisputed. One of the EMTs, Jessiea Marquez, testified as follows (Exhibit K, p. 156):
Q:
A:

What is an EDP ?
An EDP is an emotionally disturbed patient

Q:
A:

And how do you define somebody who is emotionally disturbed?
How do I define?

Q:
A:

Yes.
I don't define EDP.

Q:
A:

Not your job?
Absolutely not.

Q:

Do you have any training in making determinations about emotionally
disturbed people?
Absolutely, no.

A:
Q:
A:

person

Did you ever give anybody an opinion whether or not whether
Sehoolcraft was emotionally disturbed?
No .

She also testified as follows (Exhibit K, pp. 196-197):
Q:

Am I correet that the police department deelared Schoolcraft an EDP?

MS. PUBLICKER METTHAM: Objection
A:

NYPD is the only agency we work with that can declare someone an
EDP.

Q:

Did the NYPD deelare Schooleraft an EDP at the seene on October 31,
2009?

MR RADOMISLI: Objection to form.
MS. PUBLICKER METTHAM: Objection
A:

2475341 1

That is correct

25

Similarly, Salvatore Sanginiti, the other EMT who responded to the scene, testified as
follows (Exhibit T, p. 54, 58, 67):
Q:

Did you ever have any discussions with anybody at the scene about
Officer Schoolcraft being an EDP or an emotionally disturbed person?

A:

1 don't

I don't designate who is an emotionally disturbed person.
*

H=

Q:
A:

*

So Hanlon told you while you and she were standing in the room that
Officer Schoolcraft was EDP ?
Yes.
*

Q:
A:

Other than Hanlon, anybody else tell you Schoolcraft was an EDP?
No .

Q:

Did you ever have any discussions with anybody at the scene about
whether or not Schoolcraft was an EDP?
No.

A:

Significantly, Chief Marino testified that he believed the plaintiff was an EDP before
he, or anyone else, had even entered Schoolcraft’s apartment (Exhibit P, pp. 256-257):
Q:

At the time that you entered into that plan [to enter Schoolcraft’s
apartment], did you believe that Schoolcraft was an EDP?

A:

Yes, I did. I believe it was a possibility of it. And I believe it was a
possibility that he may have already harmed himself
*

Q:
A:

2475341 1

And in what way did you believe that Schoolcraft was an EDP while
you were on the landing outside of his apartment?
Based upon what I had been told in the lot. The previous psychological
history. Based upon the way he left the precinct against orders, which
would be an irrational act, based upon the fact that he was answering
his phone and refused to answer. Based upon the fact that there were
police officers all around his house and on his stairs knocking, and
there had been no movement heard in the last hour.

26

Lt. Elise Hanlon testified as follows (Exhibit S, pp. 73-74);

A:

Is the deeision [to deelare someone an EDP] ultimately made by the
poliee department or is the decision made by—
If the patient is an EDP?

Q:
A:

Yes.
Yes.

Q:

So the decision is ultimately made by the police department; is that
correct?
Yes.

Q:

A:

*

Q:
A:

*

*

[W]hat I’m saying is the NYPD makes the decision about whether or
not somebody is an EDP, right?
Yes.

Lt. William Gough testified as follows (Exhibit R, pp. 176-177):
Q:
A:

When did he become an EDP?
When he fled the ambulance and raced back into his apartment and
then refused medical attention.

Significantly, both Jessica Marquez and Salvatore Sanginiti remained by the
ambulance and did not enter plaintiffs apartment again after the plaintiff left the ambulance.
In response to the question:

And just to be 100% clear, did you go back into the apartment

after Adrian Schoolcraft left your ambulance?”, Marquez answered “No.” (Exhibit KK pp.
231-232). Similarly, Sanginiti testified that he, Marquez and Lt. Hanlon stayed on the street
by the ambulance after the plaintiff left the ambulance to go back to his apartment (Exhibit T,
p. 119). Therefore, based upon Gough’s testimony, Marquez and Sanginiti could not have
been involved in the decision to declare plaintiff an EDP.
There is absolutely no testimony or other evidence to support plaintiffs flctitious claim
that either EMT Sanginiti or EMT Marquez had any role in determining that the plaintiff was
an EDP. Accordingly, there is no support for plaintiffs argument that the EMTs engaged in

247534L1

27

state action because plaintiff has not presented any evidence that they jointly participated with
the NYPD when Schoolcraft was declared an EDP. In fact, the evidence proves otherwise.
Plaintiffs contention that Sanginiti and Hanlon “steered him to Jamaica Hospital in
accordance with their hidden agenda with the NYPD to have him deemed an EDP” (p. 49,
plaintiffs MOL) can only be described as ridiculous, and is belied by the evidence. Sanginiti
specifically testified that the “mobile data terminal95 U designated through the 911 system
directed EMS to take plaintiff to JHMC because it was the closest hospital to the plaintiffs
apartment (Exhibit T, pp. 69-70). He told Schoolcraft that they needed to go to Jamaica
Hospital because it was the “closest receiving 911 hospital” (Exhibit T, p. 107). He explained
that “when we get an assignment and hospital designation from 911, it comes up with a mask.
That mask tells you the closest hospitals, closest speciality hospital, the closest whatever that's
designed and through the 911 system. It comes out through them” (Exhibit T, p. 108). In
addition, Marquez testified that Hanlon told her to take the plaintiff to Jamaica Hospital and
that she followed Hanlon’s orders (Exhibit KK, pp. 150-152, pp. 160-162, p. 212). Hanlon
explained that she had recommended Jamaica because it was the closet hospital and had a
psychiatric facility (Exhibit S, p. 122). There is simply no support for plaintiffs conjecture
that there were “bogus and pretextual reasons” for taking plaintiff to Jamaica (plaintiffs
MOL, p. 50).
At best, plaintiff has established that the defendants may have merely “worked together
or communicated generally with each other,” which is not sufficient to sustain a cause of
action for conspiracy to violate plaintiffs civil rights.

See Cine SK8, Inc. v. Town of

Henrietta, 507 F.3d 778 (2d Cir. 2007) (while there was evidence to suggest that each
individual acted with racial animus, there was no evidence to suggest that there was an

2475341_1

28

understanding among the defendants to do so); Scotto v. Almenas, 143 F.3d 105 (2d Cir,
1998); Manbeck v. Micka, 640 F.Supp.2d 351, 379 (S.D.N.Y. 2009) (dismissing conspiracy
claim where there was no evidence that the state and private defendants had a “meeting of the
minds” with the goal of depriving plaintiff of her constitutional rights); Zahrey v. City ofNew
York, 2009 U.S.Dist. LEXIS 31893, *44 (S.D.N.Y. April 15, 2009) (dismissing conspiracy
claim where plaintiff “provide[d] no evidence, absent the fact that the Individual Defendants
worked together, that. . . an agreement existed.”). In the absence of “supporting operative
facts” to show an agreement or concerted action to deprive the plaintiff of his civil rights.
plaintiffs claim for conspiracy must be dismissed. See Johnson v. Columbia University, 2003
U.S.Dist. LEXIS 20932, *14 (S.D.N.Y. Nov. 19, 2003). Allegations of “joint conducf’ are
not sufficient. Id.
Plaintiff has also not presented any evidence of conspiracy-related conversations
between any of the members of the NYPD and any JHMC staff after the plaintiff arrived at
the Hospital.'^ Nor has plaintiff presented any evidence of a “tacit understanding” among the
parties to deprive the plaintiff of his civil rights. See Van Dunk v. Brower, 2013 U.S.Dist.
LEXIS 160667, *47, 50 (S.D.N.Y. Nov. 7, 2013) (no factual basis to support a meeting of the
minds, such that defendants entered into an agreement, express or tacit, to achieve an
unlawful end); Farag v. United States, 587 F.Supp.2d 436, 470-71 (E.D.N.Y. 2008)
(Plaintiffs failed to adduce evidence that there was a meeting of the minds “whose conscious
objective” was to deprive plaintiffs of their constitutional rights; a presumed agreement to
16

The JHMC chart and the quotations plaintiffs counsel cites therefrom indicate that the police
officers gave the JHMC physicians a history of the events leading up to plaintiffs presentation at
Jamaica Hospital. Even plaintiffs expert admitted that the JHMC staff had the right to rely upon what
the police had said (Exhibit MM, attached hereto, at p. 329), and case law demonstrates that those
conversations would not qualify as “state action. See Sykes v. McPhillips, 412 F.Supp.2d 197
(N.D.N.Y. 2006) (private hospital which provided emergency medical services to a prisoner at the
request of correctional officers was not a state actor).

2475341_1

29

detain the plaintiff was not sufficient) (emphasis added). As this Court noted in Fisk v.
Letterman, 401 F.Supp.2d 362, 376 (S.D.N.Y. 2005), “Without a meeting of the minds, the
independent acts of two or more wrongdoers do not amount to a conspiracy.
As before, plaintiff improperly conflates potential causes of action against an
individual with potential causes of action against an entity. Individuals can conspire; entities
cannot.

And because JHMC cannot be liable for the alleged constitutional torts of the

codefendants or of any its employees, see Schoolcraft v. City of New York, supra, the claim
for conspiracy must be dismissed.
Plaintiffs claim that the City defendants and JHMC engaged in a conspiracy to have
the plaintiff involuntarily hospitalized is also belied by the evidence plaintiffs counsel
himself submits in opposition to defendants’ motions.

On p. 94 of his MOL, plaintiffs

counsel states that the police officers went to plaintiffs apartment “in order to bring him back
to the 8L* Precinct,” and that codefendant Mauriello “confronted Officer Schoolcraft and
ordered him to return to the 8L‘ Precinct.” See also plaintiffs Counter 56.1 Statement, pp.
52-55 (Plaintiff was repeatedly directed to return to the 8L^ Precinct). Clearly, then, the
NYPD’s “agenda” was to take the plaintiff back to work.
On p. 48 of his MOL, plaintiffs counsel admits that the codefendant police officers
initially ordered the plaintiff to go back to the 81®* Precinct, that the plaintiff told them that he
would go to the Precinct against his will, but that “moments later, [he] stated that he had to sit
down because he was not feeling well.

It was only then that the JHMC EMTs began to

evaluate him (plaintiffs MOL, p. 48). Accordingly, the plaintiffs own physical complaints
were the catalyst for the EMTs to get involved. Given plaintiffs own rendition of the events.
there could not have been a “hidden agenda” between the NYPD and JHMC, as plaintiff

2475341_1

30

claims, to have the plaintiff “deemed an EDP and committed to the Jamaica Hospital
psychiatric ward” (plaintiffs MOL, p. 49). Given plaintiffs own rendition of the events,
there could not have been a pre-arranged agreement to take the plaintiff to JHMC as an EDP
because there was no way to know he would refuse to go back to the

Precinct.

Consequently, plaintiffs claim for conspiracy to violate plaintiffs civil rights should be
dismissed.
POINT III
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
DIRECTLY AGAINST JHMC FOR MEDICAL MALPRACTICE
A.

Vicarious Liability for Dr. Aldana Bernier and Dr. Isakov

In its January 30, 2015 Memorandum of Law, JHMC argued that plaintiff could not
maintain a cause of action directly against Jamaica Hospital for medical malpractice. JHMC
does not dispute that plaintiff could make a viable legal argument that JHMC could be held
vicariously liable for the acts and/or omissions of Dr. Aldana-Bemier and/or Dr. Isakov
insofar as plaintiff alleges a cause of action for medical malpractice against those defendants
(as distinct from plaintiffs 42 U.S.C. Section 1983 claims, for which the Hospital cannot be
held vicariously liable).

However, despite having amended the Complaint three times.

plaintiff never asserted a cause of action for vicarious liability, and never alleged that JHMC
was vicariously liable for Dr. Aldana-Bernier and/or Dr. Isakov. Therefore, plaintiffs cause
of action for medical malpractice against JHMC should be dismissed.

B.

Vicarious Liability for its Staff

As previously argued in its January 30, 2015 MOL, plaintiff cannot sustain an
independent cause of action for medical malpractice against a defendant hospital when a

2475341 1

31

plaintiff alleges various departures from the standard of care against all defendants, but fails
to state how specific members of the hospital staff committed an act of malpractice
independent from the patient’s attending physicians. See Suits v. Wyckoff Hgts. Med. Ctr., 84
AD3d 487, 489-490, 922 NYS2d 388 (1st Dept. 2011). Finding that plaintiffs in Suits could
not sustain a cause of action arising out of any independent acts of malpractice against the
defendant hospital, the Appellate Division, First Department, explained the following:
Given that the only person identified by plaintiffs as being
negligent was Dr. Abalcporo [the attending physician] and that
plaintiffs failed to distinguish any separate alleged acts and
omissions of Wyckoff s staff, Wyckoff sustained its prima facie
burden of establishing that there were no independent claims
against it and that it can only be held vicariously liable for Dr.
Abakporo. Plaintiffs did not specify any independent acts of
negligence by Wyckoff s staff and ‘our jurisprudence does not
require a defendant [moving for summary judgment] to prove a
negative on an issue as to which [it] does not bear the burden of
proof’
84 AD3d at 489-490 [citations omitted]; See also Dendariarena v. Mt. Sinai Hospital, 2012
Slip.Op. 31262(0) (N.Y.Sup. 2012); Mercedes v. Farrelly, 2012 N.Y.Misc.LEXIS 2032
(N.Y. Co. May 1, 2012) (granting summary judgment because plaintiffs failed to assert and/or
prove a cause of action for medical malpractice as against the hospital itself, as opposed to
plaintiffs’ claims against the attending physicians).
In the Third Amended Complaint (Exhibit EL), plaintiff does not make any allegations
of medical malpractice as to any specific members of the JHMC staff separate from the
codefendant psychiatrists. Similarly, neither of plaintiffs experts identified any departures
from accepted standards of care by any specific members of the JHMC staff, other than the
codefendant psychiatrists. Therefore, plaintiff cannot maintain a cause of action for medical
malpractice against JHMC directly, and that cause of action should be dismissed.
Plaintiffs counsel attempts to minimize the Hospital’s argument by contending that
2475341 1

32

his experts’ failure to “name names” is “semantics.'
JHMC’s argument.

However, plaintiff mischaracterizes

The issue is not that plaintiffs’ experts failed to identify a Hospital

employee’s name. Rather, the issue is that among the four people whom plaintiffs’ experts
identified (Dr. Twin, Dr. Patel and the two EMTs), plaintiff has not presented sufficient
evidence to create a question of fact as to whether any of them departed from accepted
standards of care and caused injury.
Plaintiffs counsel’s claim that Dr. Lubit identified Dr. Twin and Dr. Patel as having
violated the hospital’s written policy on involuntary commitments is simply not true, and
directly contradicted by Dr. Lubif s deposition testimony:
Q:

Doctor, can you tell me where in your report you identify anybody who saw
this patient other than Dr. Aldana-Bernier and Dr. Isakov?

A:

I don’t think I—I don’t know how much I talked about or if I even mentioned
the resident, because the responsibility—I was not told that he was—^the
resident was a party to the case, and certainly the attending in the emergency
room had ultimate responsibility.
*

Q:

*

Do you mention any other person who departed, in your opinion, departed
from accepted standards of care in your report?

Mr. Smith:

Objection to the form.

A:

I don’t at this moment recall. . . Okay. On page 21. I mentioned Dr. Twin and
Dr. Patel as well.

Q:

Okay. And [you] write that they violated the policies of Jamaica Hospital
Department of Psychiatry?

A:

Yes.

(Exhibit AA, pp. 80-83).
*

*

Q:
A:

2475341 1

Did she [Dr. Twin] violate the part of the policy that you did write down?
At this moment, as I think about it, she does not violate the part about

33

admission.
(Exhibit AA, p. 84).
Q:

And therefore Dr. Patel also did not violate the portion of the policy that you
quote in your report, correct?

MR. SMITH: Objection to the form.
A:

It’s [sic] does not violate the portion that I quoted, that is correct.

(Exhibit AA, p. 85).
Given that neither Dr. Patel nor Dr. Twin admitted the plaintiff to the Hospital, it is
obvious that they could not have violated JHMC’s written policy on involuntary commitments
(Exhibit U, pp. 57-58) (Exhibit W, p. 107) (Exhibit X, pp. 222-223). Accordingly, plaintiff
cannot maintain a cause of action for medical malpractice against JHMC based upon their
actions, as plaintiffs expert reluctantly admitted. 17
Although Dr. Halpren-Ruder mentioned the EMTs’ and the emergency room doctor’s
“conduct” in his report (plaintiffs MOL, p 116), he lacked an appropriate foundation for his
opinions, and acknowledged at his deposition that their actions were not a proximate cause of
the plaintiffs alleged injuries {see pp. 32-37 of JHMC’s January 30, 2015 MOL). Therefore,
his opinions are not sufficient to defeat the Hospital’s motion for summary judgment.

17

It should also be noted that plaintiffs quotation of Dr. Lubif s report on p. 115, n. 328 of his
Memorandum of Law is not only inaecurate, but a work of fietion. NOWHERE in his report does Dr.
Lubit state, “Plaintiff was handcuffed to a gurney for more than nine hours, during which time he was
denied the free use of phone, or reasonable access to water, food or bathroom facilities. Plaintiff
repeatedly requested an opportunity to speak with internal affairs, and to have photographs taken of
his multiple bruises, but these requests were steadfastly ignored by doctors and hospital staff.”
(emphasis in original). Furthermore, the JHMC chart contains photographs of plaintiffs alleged
bruises, so even the fictionalized quotation is inaccurate. Unfortunately, defense counsel did not have
sufficient time to double check all of plaintiffs citations and quotations from his 129 page
Memorandum of Law with 366 footnotes.

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34

POINT IV
DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT
ON PLAINTIFF’S CAUSE OF ACTION FOR MEDICAL MALPRACTICE
BECAUSE PLAINTIFF HAS NOT DEMONSTRATED AN ISSUE OF FACT
Plaintiffs experts’ opinions do not create an issue of fact because plaintiffs’ experts’
opinions—substantively-- are not sufficient to rebut JHMC’s prima facie showing that it is
entitled to summary judgment, not just because plaintiffs’ experts do not identify any specific
individuals who departed from accepted standards of care, but also because they do not
establish the standard of care in their reports (see JHMC’s January 30, 2015 MOL, pp. 2737). 18 See also Bender v. Lowe, 2011 U.S.Dist. LEXIS 99053, *34-35 (S.DN.Y. Aug. 30,
2011) (“The Second Circuit has noted that ‘[i]n order to show that the defendant has not
exercised ordinary and reasonable care, the plaintiff ordinarily must show what the accepted
standards of practice were and that the defendant deviated from those standards . . ..’ [citation
omitted]. [Ejven if the Court considers Plaintiffs excluded expert testimony, it fails to set
forth the relevant medical standards required to sustain a claim for medical malpractice”).
Plaintiffs experts’ failure to identify the standard of care from which there were alleged
departures is fatal to plaintiffs claim for medical malpractice.

IS

In his Memorandum of Law in opposition, plaintiffs counsel states in conclusory fashion that Drs.
Lubit and Halpren-Ruder defined the standard of care in their reports. If that statement were correct,
however, it would have been logical for plaintiffs counsel to actually quote the sections from those
reports that substantiate that contention. Plaintiffs failure to do so demonstrates his inability to do so.
Similarly, plaintiffs counsel does not even cite a single sentence by either of his experts which
actually states that there was a departure from accepted standards of care.

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35

POINT V
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR FALSE ARREST OR FALSE IMPRISONMENT
A.

Plaintiffs Claim Must Be Dismissed Because
Plaintiff Cannot Demonstrate that JHMC
Committed Medical Malpractice

For the reasons discussed above, plaintiff carmot maintain a medical malpractice claim
directly against JHMC. There is absolutely no proof that any of the JHMC staff departed
from accepted standards of care, and plaintiffs experts have not identified anyone whose
alleged departures were also a proximate cause of the plaintiffs alleged injuries. None of
plaintiffs allegations regarding the admission even pertain to any of the JHMC staff other
than codefendant Dr. Aldana-Bemier.

Plaintiffs failure to establish that an issue of fact

exists as to whether JHMC departed from accepted standards of care dooms plaintiffs claim
for false imprisonment.

B.

Plaintiffs Confinement was “Otherwise Privileged?9

Plaintiffs argument that JHMC waived its right to argue that plaintiffs confinement
was otherwise privileged” pursuant to the Emergency Medical Treatment and Labor Act, 42
use §1395dd (“EMTALA”) is meritless and misconstrues the Hospital’s argument. JHMC
did not argue that EMTALA is a “privilege” entitling it to hold someone against his will, or
that it was a “privilege” as commonly understood in Rule 8 of the Rules of Civil Procedure. 19
Rather, as JHMC argued, an act can be “otherwise privileged” for the purposes of defending a
19

Even if this Court were to hold that EMTALA should have been asserted as an affirmative defense
pursuant to Rule 8, it should not hold that JHMC waived that defense because when JHMC served its
Answer, this Court had dismissed plaintiffs Section 1983 claims against the Hospital. When this
Court reinstated those claims and permitted plaintiff to amend the Complaint for the third time, it did
not allow the defendants to serve an Answer to the Third Amended Complaint, in which additional
affirmative defenses might have been asserted.

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false imprisonment elaim “if the defendant can show that his actions were justified by the
law.” See Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984); See also Hudson v. State of
New York, 35 Misc.3d 241, 937 NYS2d 529 (Ct. of Claims, 2011) (confinement is privileged
if imposed under color of law or regulation); Frederick v. State of New York, 23 Misc.3d
1008, 874 NYS2d 762, (Ct. of Claims, 2009). Interestingly, “the legal justification for an
alleged false imprisonment need not be found in the substantive law of New York but may be
found in some other pertinent body of law.” Caban v. United States, 728 F.2d 68, 72-73 (2d
Cir. 1984).
Defendants’ actions were “otherwise privileged” in the sense that defendants were
justified in retaining the plaintiff in the hospital, at least until the results of plaintiffs CT scan
returned, by the provisions of EMTALA, given that a hospital is essentially prohibited from
discharging a patient who presents to the emergency room until it is determined whether an
emergency medical condition exists, lest the hospital run afoul of EMTALA. See Mallgren v.
Burkholder, 2014 U.S.Dist. LEXIS 107256, * 18 (E.D.N.Y. August 5, 2014) (a hospital is
federally mandated to provide emergency medical services under EMTALA) {citing Sykes v.
McPhillips, 412 F.Supp.2d 197 (N.D.N.Y. 2006)).
Plaintiff argues that he had the right to refuse medical treatment, and therefore
EMTALA does not apply. However, there is no evidence to suggest that the plaintiff refused
treatment in the medical emergency room. Plaintiffs counsel does not cite an entry in the
chart, does not cite from plaintiffs deposition, and does not cite any testimony by Dr. Lwin or
Dr. Patel implying that the plaintiff refused to be treated while in the medical ED. Finally, the
fact that the plaintiff was brought to the medical Emergency Department allegedly against his
will does not release the Hospital from its obligations under EMTALA.

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POINT VI
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR NEGLIGENT HIRING, TRAINING OR SUPERVISION
Plaintiffs counsel argues that plaintiff can maintain a cause of action for negligent
hiring, training and supervision beeause there is evidenee that the codefendant psychiatrists
and the JHMC staff had a propensity to improperly hospitalize patients or to eommit false
arrest or false imprisonment. Even if the plaintiffs eounsel had presented such evidence,
which he does not, he does not address the Hospital’s arguments that in order to defeat
JHMC’s summary judgment motion, he must also submit evidence that the Hospital should
have known of such a propensity, or that JHMC “failed to investigate a prospective employee,
notwithstanding knowledge of facts that would lead a reasonably prudent person to
investigate that prospective employee.” Bouchard v. N.Y. Archdiocese, 719 F.Supp.2d 255,
261 (S.D.N.Y. 2010).
Plaintiffs counsel also does not address the Hospital’s argument that the negligent
hiring elaim must be dismissed because there is no evidence that JHMC aetually acted
negligently in hiring, training or supervising the employee. See e.g. Hattar v. Carelli, 2012
U.S.Dist. LEXIS 12985, *13-14 (S.D.N.Y. Jan. 11, 2012) (dismissing negligent hiring claim
when plaintiff failed to adduce evidence that defendants improperly investigated any
individual defendant when he was hired); Tsesarskaya v. City of New York, 843 F.Supp.2d
446 (S.D.N.Y. 2012); Biggs v. City of New York, 2010 U.S.Dist. LEXIS 1213332 (S.D.N.Y.
Nov. 16, 2010); Bouchard v. NY Archdiocese, 719 F.Supp.2d 255, 263 (S.D.N.Y. 2010);
Tatum V. City of New York, 2009 U.S.Dist. LEXIS 3512 (S.D.N.Y. Jan. 20, 2009), or that
plaintiff failed to submit “evidence of deficiencies in the training of employees that, if
corrected, would have avoided the alleged harm”, Hattar v. Carelli, 2012 U.S.Dist. LEXIS

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12985, *14 (S.D.N.Y. Jan. 11, 2012); Baez v. JetBlue Airways, 745 F.Supp.2d 214, 225
(E.D.N.Y. 2010).
Plaintiffs counsel also does not address the Hospital’s argument that the negligent
hiring, training and supervision claim must he dismissed because there is no evidence that an
employee was acting outside the scope of his employment. See Gurevich v. City of N York,
ew
2008 U.S.Dist. LEXIS 1800, *20 (S.D.N.Y. Jan. 10, 2008) (Because the defendants were
aeting within the scope of their employment, plaintiffs claim for negligent hiring and training
was hatred as a matter of law); Hollins v. City of New York No. 10 Civ. 1650 (LGS)
(S.D.N.Y. Mar. 3, 2014) (To establish a claim for negligent hiring, training and supervision.
the defendant’s actions must be outside the scope of his employment); see also Velez v. City
ofNew York, 730 F.3d 128, 137 (2d Cir. 2013).
Therefore, even if plaintiff could sufficiently demonstrate that the Hospital employees
had a propensity to improperly commit patients, plaintiffs eause of action for negligent
hiring, training and supervision must be dismissed because plaintiff has not presented any
evidence to create a question of fact as to the other requirements he must meet to sustain that
cause of action against the Hospital. See Zeak v. United States, 2015 U.S.Dist. LEXIS 6044
(S.D.N.Y. Jan. 20, 2015) (Plaintiffs negligent hiring elaim fails because, among other
reasons, plaintiff cannot show that the alleged malpractice oeeurred outside the scope of the
defendant-surgeon’s employment and beeause plaintiff has not demonstrated that the
employer knew or should have known about the employee’s propensity for the conduct that
caused the injury and did not allege the requisite knowledge in her Complaint which, itself.
was a third, independent basis for dismissing the negligent hiring claim).

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POINT VII
PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION
FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiff opposes JHMC’s motion to dismiss the claim for intentional infliction of
emotional distress by referring this Court to his argument in opposition to the City
defendants’ motion for summary judgment to dismiss that claim.

However, the actions

plaintiff alleges to have been undertaken by the City defendants are markedly different in
nature from the actions allegedly taken by the Hospital staff and the codefendant psychiatrists.
Moreover, several Courts have held that a plaintiff caimot sustain a cause of action for
intentional infliction of emotional distress in the context of false imprisonment and alleged
violations of the Mental Hygiene Law. See e.g. Wright v. City of New York, 2001 U.S.Dist.
LEXIS 8923 (S.D.N.Y. July 2, 2001); Nicholas v. City ofBinghamton, 2012 U.S. Dist. LEXIS
111736 (N.D.N.Y August 7, 2012); Kraft v. City of New York, supra-, see also Williams v.
City of Mount Vernon, 428 F.Supp.2d 146 (S.D.N.Y. 2006) (Dismissing plaintiffs claim at
the pleadings stage for intentional infliction of emotional distress based upon claims for false
arrest and excessive force). In addition, unlike plaintiffs allegations pertaining to the City
defendants, JHMC’s alleged actions were not “a series of actions over a sustained period of
time” (plaintiffs MOL, p. 65) and, accordingly, are absolutely duplicative of plaintiffs other
claims against the Hospital. Therefore, plaintiffs claim for intentional infliction of emotional
distress should be dismissed.

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CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court grant defendant’s
motion and dismiss the Third Amended Complaint as to JAMAICA HOSPITAL MEDICAL
CENTER in its entirety, together with such other and further relief as this Court deems just
and proper.
Dated: New York, New York
March 6, 2015
Respectfully submitted.
Martin Clearwater & Bell LLP

-'A" '

.4,.,.
■/A''

By: t
/f
Gregory J. Radomisli (GJR 2670)
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL
CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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