Crowhurst v. Szczucki et al

Filing 81

MEMORANDUM OPINION AND ORDER re: 45 FIRST MOTION to Dismiss for Failure to State Claim. filed by Denise Szczucki, 36 FIRST MOTION to Dismiss For Failure to State a Claim. filed by Denise Szczucki. The pending motions to di smiss the Complaint are denied as moot without prejudice to renewal should the plaintiff decide to file an amended complaint. (As further set forth in this Order.) For the foregoing reasons, the plaintiff's Complaint is dismissed without prejudice. The plaintiff may file an amended complaint by March 7, 2017. The Clerk is directed to close all open motions. ( Amended Pleadings due by 3/7/2017.) (Signed by Judge John G. Koeltl on 2/7/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
16-cv-00182 (JGK)

CROWHURST,

MEMORANDUM OPINION AND
ORDER

Plaintiff,
- against SZCZUCKI, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

This action arises from injuries that the plaintiff,
Jennifer Crowhurst, suffered as a result of an alleged assault.
The plaintiff has brought claims for (1) medical malpractice
against the defendant Dr. Denise Szczucki; (2) negligence
against the defendants Hampton Inns LLC d/b/a Hampton Inn,
Hampton Inn Management LLC d/b/a Hampton Inn, and the Hilton
Hotel Group (collectively, the “Hilton defendants”)1; (3)
negligence against the defendants Sheryl Dicker Stein (“Sheryl
Stein”), and Sheryl Dicker Stein as Administrator of the Estate
of Norman Stein (the “Estate of Norman Stein”)2; and (4) wage

1

The Hilton defendants assert that “Hampton Inns Management LLC”
is misidentified in the Complaint as “Hampton Inn Management
LLC” and that the “Hilton Hotel Group” is not a valid legal
entity. See Dkt. 25.
2
By letter dated September 13, 2016, counsel for Norman Stein,
who was originally named as a defendant in the Complaint,
notified the Court that Mr. Stein had died. See Dkt. 58. By
Order dated October 12, 2016, the action was stayed pending the
substitution of a proper party for Mr. Stein pursuant to Rule 25
1

theft against the defendants the Estate of Norman Stein, Sheryl
Stein, and Fannie Rebecca Stein (“Fannie Stein”).3
The gist of the plaintiff’s allegations is that Dr.
Szczucki prescribed a series of psychiatric medications to
Fannie Stein, presumably at Dr. Szczucki’s office in New York.
Thereafter, the plaintiff, who is a home health aide,
accompanied Fannie Stein to a Hampton Inn in Pennsylvania, where
Fannie Stein allegedly attacked the plaintiff as a result of the
psychiatric medications prescribed by Dr. Szczucki. The
plaintiff claims that negligence by the Hilton defendants in
maintaining that Hampton Inn exacerbated the plaintiff’s
resulting injuries. It is also alleged that Norman Stein, Sheryl
Stein, and Fannie Stein failed to pay the plaintiff the wages
that the plaintiff was owed pursuant to the Fair Labor Standards
Act (the “FLSA”) and the New York Wage Theft Prevention Act.
“A pleading that states a claim for relief must contain a
. . . short and plain statement of the grounds for the court’s
jurisdiction. . . .” Fed. R. Civ. P. 8(a)(1). The plaintiff’s
Complaint asserts that the “basis for venue” in this Court is

of the Federal Rules of Civil Procedure. See Dkt. 65. In a
separate Order dated February 7, 2017, the Estate of Norman
Stein was substituted as a defendant in this action, and the
stay was lifted. See Dkt. 80.
3
The Complaint originally named Dr. Seth Leven as a defendant to
the medical malpractice claim. Compl. ¶ 10. Pursuant to a
stipulation between Dr. Leven and the plaintiff, Dr. Leven has
been terminated with prejudice from this action. See Dkt. 23.
2

“diversity jurisdiction.” See Compl. at 1. There is no other
statement of jurisdiction.
Dr. Szczucki has moved to dismiss the Complaint for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and the Hilton defendants have moved for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
The defendants have not moved to dismiss the Complaint for
want of subject matter jurisdiction. “Because of the limited
jurisdiction of the federal courts, however, it is incumbent
upon this court to raise the question of subject matter
jurisdiction sua sponte whenever it appears from the pleadings
or otherwise that jurisdiction is lacking.” John Birch Soc’y v.
Nat’l Broad. Co., 377 F.2d 194, 199 (2d Cir. 1967). “If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ.
P. 12(h)(3).
The Complaint does not elaborate the statutory basis for
jurisdiction in this Court, but the grounds for jurisdiction are
clearly predicated on 28 U.S.C. § 1332(a). Pursuant to 28 U.S.C.
§ 1332(a)(1), “The district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of

3

interest and costs, and is between . . . citizens of different
States.”4
“The party seeking to invoke jurisdiction under 28 U.S.C. §
1332 bears the burden of demonstrating that the grounds for
diversity exist and that diversity is complete.” Advani Enters.,
Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir.
1998). “In other words, federal subject-matter jurisdiction
based on diversity is unavailable unless [the plaintiff’s]
pleadings demonstrate that it does not share citizenship with
any of the [defendants].” Id. “[A] statement of residence,
unlike domicile, tells the court only where the parties are
living and not of which state they are citizens.” John Birch
Soc., 377 F.2d at 199. A limited liability corporation has the
citizenship of each of its members for the purposes of diversity
jurisdiction. Handelsman v. Bedford Vill. Assocs. Ltd. P’ship,
213 F.3d 48, 51–52 (2d Cir. 2000) (Sotomayor, J.); see also CRT
Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 371 n.1
4

To the extent that the plaintiff seeks to base jurisdiction on
federal question jurisdiction, 28 U.S.C. § 1331, based on the
FLSA, that statutory basis could only support jurisdiction under
Count IV against the Estate of Norman Stein, Sheryl Stein, and
Fannie Stein for failure to pay wages. While a court has
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over
“claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution,” it is doubtful that the remaining claims in the
Complaint are part of the same case or controversy as the claim
for unpaid wages. In any event, the plaintiff has not asserted
jurisdiction based on the FLSA or supplemental jurisdiction.
4

(S.D.N.Y. 2014). “A corporation has the citizenship of both its
place of incorporation and its principal place of business for
the purposes of diversity jurisdiction.” Berkshire II Real
Estate Holdings, LLC v. Centro Hispano Daniel Torres, Inc., No.
12-cv-3936 (JGK), 2012 WL 2152827, at *1 (S.D.N.Y. June 13,
2012).
The Complaint does not attempt to allege the citizenship of
the parties. The Complaint alleges the residence of the
plaintiff in Connecticut, see Compl. ¶ 2; the address of an
office where Dr. Szczucki conducts her medical practice in New
York, see Compl. ¶ 5; and the residence of Norman Stein (before
he was substituted in this action by the Estate of Norman Stein)
and Sheryl Stein in New York, see Compl. ¶ 29. The Complaint
does not allege the citizenship of the members of the defendants
that are limited liability corporations. See Compl. ¶¶ 15-20.
The Complaint alleges that the “global headquarters” of the
Hilton Hotel Group is in Virginia, but does not allege the
Hilton Hotel Group’s place of incorporation or its principal
place of business (assuming that the Hilton Hotel Group is a
corporation --- the Complaint does not allege the legal status
of the Hilton Hotel Group). See Compl. ¶ 17. The Complaint does
not include any allegations with respect to the citizenship of
Fannie Stein. The failure to allege the citizenship of the
parties warrants dismissal of the Complaint. See Seedman v.
5

Hilton Hotel Corp., No. 99-cv-3561 (SAS), 1999 WL 1243874, at *2
(S.D.N.Y. Dec. 22, 1999) (citing Chateau Hip, Inc. v. Gilhuly,
No. 95-cv-10320 (JGK), 1996 WL 437929, at *1 (S.D.N.Y. Aug. 2,
1996)).
Moreover, the claim for medical malpractice against Dr.
Szczucki suffers from an additional defect that independently
warrants dismissal of that claim at the threshold. “[T]o
establish a claim of medical malpractice under New York law, a
plaintiff must prove (1) that the defendant breached the
standard of care in the community, and (2) that the breach
proximately caused the plaintiff’s injuries.” Milano by Milano
v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (citations and internal
quotation marks omitted). New York law typically requires expert
medical opinion evidence to make out both of these elements
except as to matters within the ordinary experience and
knowledge of laymen. Id. Where expert medical opinion evidence
will be necessary for the plaintiff to meet the plaintiff’s
burden, N.Y. C.P.L.R 3012-a(a)(1) requires the plaintiff to
submit a certificate of merit with the complaint “declaring that
her attorney ha[s] reviewed the facts of the case and consulted
with at least one physician knowledgeable regarding the relevant
issues in this action, and that the attorney ha[s] concluded
that there [is] a reasonable basis for the commencement of the
action.” Monzon v. Chiaramonte, 35 N.Y.S.3d 371, 373 (App. Div.
6

2016). “[A] state statute requiring a certificate of merit” --such as N.Y. C.P.L.R 3012-a(a) --- is substantive law that
applies in a federal diversity action.” Finnegan v. Univ. of
Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998); see
also In re Zyprexa Prod. Liab. Litig., No. 04-MD-1596 (JBW),
2008 WL 4850122, at *2 (E.D.N.Y. Nov. 6, 2008).
The plaintiff did not submit a certificate of merit with
the Complaint pursuant to N.Y. C.P.L.R 3012-a(a)(1), or attempt
to excuse the failure to do so. The claim against Dr. Szczucki
relates to Dr. Szczucki’s psychiatric treatment of the defendant
Fannie Stein with various drugs, presumably at Dr. Szczucki’s
office in New York, a matter certainly outside the ordinary
experience and knowledge of laymen. See, e.g., Perez v. Lenox
Hill Hosp., 552 N.Y.S.2d 244, 245 (App. Div. 1990). Accordingly,
the failure to submit the certificate of merit, or present
reasons that would excuse the submission, also warrants
dismissal of the medical malpractice claim.
The Complaint is dismissed without prejudice. Rule 15(a)
provides that leave to file an amended complaint should be
granted “freely . . . when justice so requires.” Fed. R. Civ. P.
15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(“Rule 15(a) declares that leave to amend ‘shall be freely given
when justice so requires’; this mandate is to be heeded.”
(citation omitted)). Under the circumstances, the plaintiff
7

should be given the opportunity to cure the defects in the
pleadings consistent with this opinion. See Moreno-Godoy v.
Gallet Dreyer & Berkey, LLP, No. 14-cv-7082 (PAE), 2015 WL
5737565, at *7 (S.D.N.Y. Sept. 30, 2015) (quoting Ijemba v.
Litchman, 127 F. App’x 5, 7 (2d Cir. 2005) (summary order));
Chateau Hip, 1996 WL 437929, at *6.
The pending motions to dismiss the Complaint are denied as
moot without prejudice to renewal should the plaintiff decide to
file an amended complaint.
CONCLUSION
For the foregoing reasons, the plaintiff’s Complaint is
dismissed without prejudice. The plaintiff may file an amended
complaint by March 7, 2017. The Clerk is directed to close all
open motions.
SO ORDERED.
Dated:

New York, New York
February 7, 2017
_____________/s/_____________
John G. Koeltl
United States District Judge

8