Mayes v. New York City Health And Hospitals Corporation

Filing 73

MEMORANDUM AND ORDER ON RECONSIDERATION denying 68 Motion for Reconsideration. Plaintiff's motion for reconsideration is DENIED. (Docket # 68.) The Clerk is directed to terminate the motion. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 3/8/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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WANNA BERRY-MAYES, as Administrator of
the Estate of Andre Berry,
Plaintiff,
-against-

14-cv-9891 (PKC)
MEMORANDUM AND ORDER
ON RECONSIDERATION

NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION,
Defendant.
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CASTEL, U.S.D.J.
Plaintiff Wanna Berry-Mayes moves for reconsideration of a Memorandum and
Order that denied her motion for summary judgment and granted summary judgment to the New
York City Health and Hospitals Corporation (the “HHC”). (Docket # 68.) Familiarity with that
Memorandum and Order is assumed. (See Docket # 66.)
Berry-Mayes’s motion for reconsideration points to some evidence in the
summary judgment record indicating that her deceased uncle, Andre Berry, could not read or
write English. The Court did not account for this evidence when it twice mentioned that Andre
could read written English. (Id. at 14, 20.)
Drawing every reasonable inference in plaintiff’s favor as non-movant, the Court
now revisits the evidence as to Andre’s reading and writing skills, and concludes that a
reasonable jury could conclude that Andre was unable to read or write English. However,
because Andre’s reading ability was not dispositive to the central issue of whether the HHC
provided him with a reasonable accommodation, plaintiff’s motion for reconsideration is denied.

STANDARD ON A MOTION FOR RECONSIDERATION.
A district court may grant relief from an order pursuant to Rule 60(b), Fed. R.
Civ. P., if there was “mistake, inadvertence, surprise, or excusable neglect,” or if there is “any
other reason that justifies relief.” “The standard for granting such a motion is strict, and
reconsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked – matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). “A motion for reconsideration should be granted only when the
defendant identifies an intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quotation marks
omitted).
DISCUSSION.
Plaintiff Berry-Mayes brought this action in her capacity as administrator of the
estate of her deceased uncle, Andre Berry, a deaf man who communicated using sign language
and had, at most, limited speaking abilities. Among other serious medical conditions, Andre had
an advanced kidney disease that required frequent dialysis. He died in November 2013. In the
years prior to his death, Andre made several visits to two HHC facilities in the Bronx.
Plaintiff contends that the HHC violated the Americans with Disabilities Act, 42
U.S.C. § 12101, et seq. (the “ADA”), and other state and federal laws by failing to provide
Andre with the reasonable accommodations to communicate effectively, specifically including a
sign-language interpreter. In granting the HHC’s summary judgment motion, the Court reviewed

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unrebutted evidence of instances in which the HHC provided interpreters to Andre, instances in
which Andre declined the HHC’s offer to provide interpreters, instances in which HHC doctors
and employees communicated with Andre through lip reading, and evidence of Andre’s ability to
communicate by using his hearing aid. (Docket # 66 at 11-18.) The Court concluded that in
opposition, plaintiff did not point to evidence that would permit a reasonable jury to find that
Andre was denied a reasonable accommodation, and instead relied on conclusory and speculative
assertions. (Docket # 66 at 19-20.)
The Court’s Memorandum and Order twice mentioned Andre’s reading
proficiency. The Court stated: “An individual with a chronic renal disease who routinely
received dialysis treatment and sought treatment on a walk-in basis may not need a signlanguage interpreter, particularly for an individual who can read the written word and has some
ability to read lips.” (Docket # 66 at 14.) The Court later stated that “there is no contention that
Andre was unable to read English” as one of three reasons why any interpreter’s signature may
have been omitted from Andre’s consent forms. (Docket # 66 at 20.)
Plaintiff’s motion for reconsideration asserts that the Court overlooked plaintiff’s
evidence as to Andre’s limited or non-existent reading abilities. Andre’s sister, Denise Berry,
testified in her deposition that “my brother couldn’t read and spell that well.” (Pl. 56.1 ¶ 11.)
Denise Berry also testified in her deposition that she rarely communicated with Andre via text
message because she “knew he couldn’t read that good. I knew he couldn’t read. I don’t know
what other people knew, other people might have been texting him, but how do you text a person
that can’t read? I don’t know, I don’t know how you do that.” (Docket # 48-2 at 86.)
At the same time, Denise Berry qualified her own observation by stating that
Andre couldn’t read “that well” or “that good,” and plaintiff herself points out that Andre

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handwrote the words “I’m deaf” on two consent forms. (Pl. 56.1 ¶¶ 54, 56.) The HHC also
points to an undisputed incident in which a nurse texted Andre concerning test results, after
which Andre called and spoke to the nurse over the telephone. (Def. 56.1 ¶¶ 86-87; Pl. 56.1
Resp. ¶¶ 86-87.) This evidence indicates that Andre could read and write English, at least to
some degree.
In reviewing a motion for summary judgment, the Court resolves all ambiguities
in favor of the plaintiff as non-movant and draws all reasonable inferences against the HHC as
the movant. See, e.g., Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per
curiam). At summary judgment, a judge should not “weigh the evidence and determine the truth
of the matter . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Drawing every
reasonable inference in favor of the plaintiff, the summary judgment record included some
evidence that could permit a reasonable jury to conclude that Andre’s understanding of written
English was impaired. The Court’s summary judgment opinion therefore should not have
concluded that Andre was able to read English.
However, even if Andre had little to no ability to read English, this does not
defeat the HHC’s evidence in support of summary judgment or disturb the reasoning of the
Memorandum and Order. The HHC came forward with unrebutted evidence that it provided
Andre with an American Sign Language interpreter at the critical junctures of his treatment and
during nearly all of his visits. (Docket # 66 at 11, 16.) In one instance, employee notes indicated
that an interpreter was not present, but notes of interactions hours later indicated the presence of
an interpreter. (Id. at 12.) The absence of an interpreter’s signature on some of Andre’s consent
forms does not support the inference that the HHC failed to provide an interpreter to help discuss
the underlying procedures. (Id. at 12.) Staff documented that Andre “communicates clearly”

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with a hearing aid, “verbalized adequate understanding regarding pain management” and could
communicate by reading lips. (Id. at 13.)
In the Memorandum and Order, the Court mentioned the strength of Andre’s
reading ability in the context of additional, extensive evidence of the HHC’s reasonable
accommodations to Andre. The reasoning of the Memorandum and Order was based on the
direct communications between Andre and HHC employees, and not solely upon Andre’s
reading ability. Thus, the failure to account for Denise Berry’s deposition testimony about
Andre’s reading ability does not alter the outcome of the parties’ summary judgment motions. 1
CONCLUSION.
Plaintiff’s motion for reconsideration is DENIED. (Docket # 68.) The Clerk is
directed to terminate the motion.
SO ORDERED.

Dated: New York, New York
March 8, 2017

Relatedly, the Court discussed the persuasive reasoning of Martin v. Halifax Health Care Systems, Inc., 621 Fed.
Appx. 594 (11th Cir. 2015), because of its detailed review of the accommodations made to hearing-impaired
plaintiffs, and not because it involved the use of written notes.
1

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