Levitant v. Workers Compensation Board of the State of New York et al
OPINION AND ORDER re: 55 SECOND LETTER MOTION for Extension of Time TO FILE OPPOSITION addressed to Judge Edgardo Ramos from JOEL M. GLUCK dated 9/14/2017 filed by Zinoviy Levitant, 56 FIRST MOTION to Amend/Correct First Amended Complaint filed by Zinoviy Levitant, 41 MOTION to Dismiss filed by City Of New York, Zachary Carter, 43 MOTION to Dismiss (WCB Defendants' Notice of Motion to Dismiss) filed by Workers Compensation Board of the State of New York, The Commissioners of the New York State Workers Compensation Board. Accordingly, Defendants' motions to dismiss are GRANTED and Plaintiff's motion to amend is DENIED. The Clerk of Court is respectfully directed to terminate the motions (Docs. 41, 43, 55, 56), and to close the case. (Signed by Judge Edgardo Ramos on 3/8/2018) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against -
OPINION AND ORDER
WORKERS COMPENSATION BOARD OF THE
STATE OF NEW YORK, COMMISSIONERS OF
THE NEW YORK STATE WORKERS
COMPENSATION BOARD, in their individual and
official capacities, CITY OF NEW YORK, and
ZACHARY CARTER, in his individual and official
16 Civ. 6990 (ER)
This case arises from a dispute concerning the eligibility of Plaintiff Zinoviy Levitant
(“Plaintiff” or “Levitant”) for worker’s compensation benefits. Levitant brings claims under 42
U.S.C. § 1983 (“Section 1983”) against Defendants Worker’s Compensation Board of the State
of New York (“WCB”) and the Commissioners of the New York State Workers Compensation
Board (together, the “State Defendants”), as well as Zachary Carter and the City of New York
(together, the “City Defendants”).1 The State and City Defendants have each moved to dismiss
the claims against them. Docs. 41, 43. In response, Levitant has filed a proposed Second
Amended Complaint (“SAC”). Doc. 56. For the following reasons, Defendants’ motions are
GRANTED and Levitant’s motion is DENIED.
In the original Complaint (Doc. 1) and the First Amended Complaint (“FAC”) (Doc. 14), Plaintiff brought a cause
of action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Because Plaintiff has removed that
cause of action from the Second Amended Complaint, the Court considers it abandoned. See Allen v. N.Y.C.
Housing Auth., No. 10 Civ. 168 (CM), 2012 WL 4794590, at *4 (S.D.N.Y. Sep. 11, 2012) (“A party may voluntarily
drop claims by choosing not to include them in a proposed amended pleading. In such a circumstance, it is
appropriate for the Court to dismiss the abandoned claims with prejudice.”).
FACTUAL AND PROCEDURAL BACKGROUND2
Zinoviy Levitant worked as a case worker for the New York City Human Resources
Administration. FAC ¶ 2. He was injured at work on three occasions—August 14, 1997, April
30, 1999, and February 19, 2002. Id. In 2005, he suffered a relapse of the 2002 injury to his
back and left thigh. Id. Levitant was forced to take additional time off, beginning on September
13, 2005. Id. After he exhausted the sick and vacation leave he had accrued, Levitant sought
worker’s compensation benefits by appearing before the WCB, which denied his claim for
compensation due to a physical disability. Id. Levitant thereafter attempted to return to work but
was unable to remain fully employed, presumably due to his disabilities. Id. Levitant was,
however, approved for Social Security Disability and a disability pension under the New York
City Employees’ Retirement System and began psychiatric treatment around this time. Id.
Levitant later sought to re-open his WCB proceedings in light of what he described as
further physical and psychiatric disability. Id. When he was referred for an independent medical
examination, however, he developed aggravated hypertension as a result of an unspecified
incident that occurred during the examination. Id. Levitant was also referred to an impartial
specialist who determined that Levitant suffered from “a consequential psychiatric condition
which was disabling.” Id. A panel of WCB commissioners determined that Levitant sustained a
partial psychiatric disability. Id. They remanded the case to an administrative law judge
(“ALJ”) to determine an appropriate award. Id. At some point during these proceedings,
Levitant requested a change of venue because he felt that he was monitored by WCB security
every time he appeared before the WCB, and because one of the attorneys representing the City
The following facts are based on the allegations in the FAC and the SAC, which the Court accepts as true for
purposes of the instant motion. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
of New York was appointed to be an ALJ in that venue (although Levitant does not allege that
this attorney became the ALJ presiding over his case). Id. ¶ 4. That request was denied. Id.
On January 7, 2015, the ALJ in Levitant’s case determined that he was not entitled to an
award until he demonstrated that he was still seeking employment in the labor market. Id. ¶ 2.3
The judge did, however, direct the City to pay for treatment costs. Id.
Levitant thereafter attempted to attach himself to the labor market, and sought to re-open
his case again. Id. ¶¶ 3, 5. In January 2015, Levitant was scheduled to provide testimony before
the ALJ. Id. ¶ 5. However, the hearing was abruptly suspended and the ALJ ordered WCB
security officers to monitor Levitant. Id. Levitant, under the stress of this event, became ill and
went to the emergency room for treatment of his hypertension. Id. Levitant then renewed his
request for a change of venue, which was denied. Id. It is unclear whether the terminated
hearing was ever held, or if the ALJ ever issued a subsequent opinion. However, Levitant states
that as of November 2015, he had an appeal pending with the WCB on the following issues: (1)
whether he was entitled to an award of compensation after March, 22, 2006; (2) whether the ALJ
erroneously precluded testimony from Levitant’s physician regarding his hypertension; (3)
whether Levitant’s request to change venue should have been granted; and (4) whether Levitant
should be able to offer testimony to the WCB by phone. Id. That month, Levitant reached out to
his congressional representative, Daniel Donovan, and an aide from his office made an inquiry
about the status of Levitant’s appeal on November 23, 2015. Id. ¶ 6. On December 3, 2015, the
WCB issued an opinion denying all of Levitant’s appeals. Id. Levitant appealed the WCB’s
decision to the Third Department of the New York Appellate Division and requested
Where a claimant for worker’s compensation benefits in New York suffers from a permanent partial disability, but
has not been found to be involuntarily retired, he must demonstrate attachment to the labor market—that is,
“evidence of a search for employment within [his] medical restrictions.” Peck v. James Square Nursing Home, 34
A.D.3d 1033, 1034 (3d Dep’t 2006).
reconsideration in front of the full panel of WCB Commissioners. Id. Although his appeal
before the Third Department is still pending, his motion for reconsideration was denied. Id.
On September 7, 2016, Levitant filed the initial complaint in this case. See Compl. (Doc.
1). On November 28, 2016, Levitant filed the FAC, bringing three causes of action. First, he
alleged that the Defendants violated Section 1983 and deprived him of his due process rights by
requiring that he demonstrate attachment to the labor force in order to obtain worker’s
compensation benefits. FAC ¶ 14. Within this cause of action, Levitant also seemed to allege
that he was retaliated against for reaching out to Representative Donovan’s office. See id. ¶ 24.
Levitant sought an injunction directing the WCB to pay him partial worker’s compensation
benefits and sought damages for mental distress. Id. ¶¶ 25–26. Second, Levitant alleged that the
WCB violated Section 1983 by denying his request for a change in venue, which limited his
ability to exercise his right to free speech. Id. ¶ 30. Third, Levitant alleged that the WCB
violated the ADA by denying his requests to change venue and to appear telephonically. Id. ¶
36.4 On January 6, 2017, the City Defendants and the State Defendants each moved to dismiss
the FAC. Docs. 41, 43. Plaintiff sought leave to file a proposed Second Amended Complaint on
October 16, 2017. Doc. 56.
The SAC includes substantially the same factual allegations as the FAC, but has amended
Levitant’s requests for relief. The first cause of action requests an injunction “order[ing] the
Defendant Compensation Board and the Commissioners of the Board to determine if they can
adjudicate entitlement to wage loss without the forfeiture of [Levitant’s] right to receive social
security disability and NYC Employees’ Retirement benefits.” SAC ¶ 25. In the SAC, Levitant
prays for monetary relief only from the Commissioners in their individual capacities. Id. In the
As discussed in note 1, supra, this cause of action was subsequently abandoned.
second cause of action, Levitant adds allegations against the City Defendants, noting that “in
refusing and objecting to the payment of medical treatment” in the underlying worker’s
compensation claim, they have required Levitant to seek redress with the WCB and therefore are
responsible for the injuries he suffered by being unable to change venue. Id. ¶ 32. Finally, the
SAC does not bring any claims arising under the ADA.
Motion to Dismiss
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss
pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true
and draw all reasonable inferences in the plaintiff’s favor. Koch, 699 F.3d at 145. However, the
Court is not required to credit “mere conclusory statements” or “threadbare recitals of the
elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A
claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Federal Rule of Civil Procedure 8 “marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79. If
the plaintiff has not “nudged [her] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570.
Motion to Amend
A court may deny leave to amend a complaint for “good reason, including futility, bad
faith, undue delay, or undue prejudice to the opposing party.” Holmes v. Grubman, 568 F.3d
329, 334 (2d Cir. 2009) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d
Cir. 2007)). A court may deny a motion to amend on the basis of futility “only where no
colorable grounds exist to support the proposed claim.” Allison v. Clos-ette Too, L.L.C., No. 14
Civ. 1618 (LAK) (JCF), 2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015). Futility is assessed
using the same standard as dismissal for failure to state a claim; thus, leave to amend will be
denied only “if the proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure
to state a claim.” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
Dismissal for Improper Service
The City Defendants argue that all claims against them should be dismissed because
service of the Complaint was improper under Rule 4(m) of the Federal Rules of Civil Procedure.
See Memorandum of Law in Support of City Defendants’ Motion to Dismiss (“City Mem.”)
(Doc. 42) at 8; Reply Memorandum of Law in Support of City Defendants’ Motion to Dismiss
(“City Reply Mem.”) (Doc. 61) at 6.
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Sikhs for Justice v. Nath, 850
F. Supp. 2d 435, 439–40 (S.D.N.Y. 2012) (quoting Dynegy Mistream Servs. v. Trammochem,
451 F.3d 89, 94 (2d Cir. 2006)). Rule 4(m) of the Federal Rules of Civil Procedure requires that
service of a complaint be completed within ninety days of the filing of the complaint. See Fed R.
Civ. P. 4(m). Rule 4(c) provides that a plaintiff is responsible for effectuating service. See id.
4(c)(1). If a defendant is not served within ninety days, a court “must dismiss the action without
prejudice . . . or order that service be made within a specified time.” Id. 4(m). However, a court
may not dismiss for lack of service if the plaintiff shows “good cause” for the failure to serve the
summons and complaint within ninety days. Id.
Here, the Complaint was first docketed on September 7, 2016. See Doc. 1. There is
nothing in the record to suggest that Defendants were ever served with the Summons and
Complaint, much less within ninety days. Before the ninety day period elapsed, on November
28, 2016, Levitant filed the FAC. See Doc. 14. All Defendants, including City Defendants, were
served with the FAC before December 27, 2016, within the ninety day window of the filing of
the FAC, but after the expiration of the ninety day window to have served the initial complaint.
See Docs. 25–26. City Defendants contend that despite being properly served with the FAC, the
FAC should still be dismissed because Plaintiff never served the Complaint in the time provided
under the Federal Rules. See City Mem. at 8. Plaintiff does not address service of the Complaint
either his opposition to Defendants’ motion to dismiss nor in his reply in support of his motion to
Although Levitant filed the FAC during the ninety day period after the filing of the
original Complaint, the filing of an amended complaint neither restarts nor tolls the time period
to serve summons and a complaint under Rule 4(m). See Simpson v. Wells Fargo Bank, No. 15
Civ. 1487 (JMF), 2016 WL 10570967, at *2 (S.D.N.Y. Dec. 15, 2016); Sikhs for Justice, 893 F.
Supp. 2d at 607; Cioce v. Cty. of Westchester, No. 02 Civ. 3604 (HB), 2003 WL 21750052, at *3
(S.D.N.Y. July 28, 2003), aff’d 128 F. App’x 181 (2d Cir. 2005).5 Further, Levitant has not
In Cioce, the original complaint was filed on May 9, 2002. The amended complaint was filed on August 19, 2002,
and was fully served on December 2, 2002. Id. In 2002, a party had 120 days to serve a summons and complaint—
therefore, Cioce’s amended complaint was dismissed despite being filed within the time period contemplated by
made any arguments—or put forward any evidence—that show good cause for his failure to
properly serve Defendants. Therefore, the Court finds it should dismiss the claims against
Defendants.6 The Court also finds that dismissing the complaint for failure to effectuate proper
service is appropriate because Levitant is represented and not entitled to the special solicitude
afforded to pro se litigants. See Simpson, 2016 WL 10570967, at *2.7
Futility of Amendment
Although the Court finds that it must dismiss the claims against Defendants due to
improper service, which cannot be cured by further amendment of the Complaint, the Court
notes additional reasons why granting Levitant leave to file the SAC would be futile.
Immunity of State Defendants
The State Defendants argue that Defendant WCB is immune from suit in federal court
under the doctrine of sovereign immunity. See Memorandum of Law in Support of State
Defendants’ Motion to Dismiss (“State Mem.”) (Doc. 45), at 7–8; Reply Memorandum of Law
in Support of State Defendants’ Motion to Dismiss (“State Reply Mem.”) (Doc. 62), at 6–7. “It
is now settled that a state cannot be sued under Section 1983, and that this rule applies to States
or governmental entities that are considered ‘arms of the state’ for Eleventh Amendment
purposes.” Komlosi v. New York State Office of Mental Retardation and Developmental
Disabilities, 64 F.3d 810, 815 (2d Cir. 1995) (internal citation and punctuation omitted). The
Rule 4(m) because service was not effectuated against all Defendants until 207 days after the filing of the original
The Court notes that it may dismiss the complaint even if doing so “in combination with the statute of limitations,
would effectively amount to dismissal with prejudice.” Simpson, 2016 WL 10570967, at *1. None of the parties
have discussed the statute of limitations applicable to Levitant’s claims. However, much of the conduct at issue in
the Complaint took place in late 2015, see FAC ¶¶ 2–6, and the statute of limitations for Section 1983 cases in New
York is three years. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
Although the State Defendants do not raise the issue of service in their motion papers, the Court finds that the
reasons that compel it to dismiss the FAC as to the City Defendants counsel toward dismissal of the FAC with
respect to the State Defendants as well.
WCB is one such state agency. O’Diah v. New York City, No. 02 Civ. 274 (DLC), 2002 WL
1941179, at *6 (S.D.N.Y. Aug. 21, 2002) (“[T]he Workers’ Compensation Board [is a] state
entit[y] for purposes of Eleventh Amendment immunity.”). Because the WCB has not waived its
immunity, it may not be sued under Section 1983 even if the remedy sought is equitable. See
Komlosi, 64 F.3d at 815 (finding that a state agency was immune from suit for prospective relief
as well as for compensatory damages); Phillips v. New York State Dep’t of Labor Unemployment
Ins. Appeal Bd., No. 11 Civ. 1633 (JS), 2011 WL 2837499, at *2 (E.D.N.Y. July 12, 2011) (“The
Eleventh Amendment bars suits for damages against states, state agencies, and state officials
acting in their official capacity, absent the state’s consent to suit or an express or statutory waiver
of immunity.”). Therefore, amendment with respect to claims against the WCB itself would be
With respect to the Defendant Commissioners, the State Defendants argue first that they
enjoy absolute immunity because the conduct alleged in the SAC involves “quasi-judicial acts . .
. including decisions on benefits and procedural matters, such as venue and the integrity of
proceedings in the hearing room.” State Mem. at 9. Judges, including ALJs, have absolute
immunity from suits for damages arising out of judicial acts. See Phillips, 2011 WL 2837499, at
*2 (“Absolute judicial immunity extends to ALJs.”) (citing Butz v. Economou, 438 U.S. 478, 514
(1978)). Further, under the 1996 Amendments to Section 1983, injunctive relief is unavailable in
claims against judicial officers, acting in their judicial capacities, “absent an allegation of a
violation of a prior declaratory decree.” See Jacobs v. Mostow, 271 F. App’x 85, 88 (2d Cir.
2008).8 Levitant’s first cause of action alleges that his due process rights were violated because
The 1996 Amendments do not bar a plaintiff from seeking declaratory relief, or from seeking injunctive relief
when declaratory relief is unavailable. See 42 U.S.C. § 1983. Levitant, however, has not sought declaratory relief
in this case, nor has he adequately explained why such relief is unavailable to him. See SAC ¶¶ 37–39;
Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (Doc. 57) at 5.
the WCB erred in “enforc[ing] a broad requirement that partially disabled claimants attach
themselves to the labor market regardless of their receipt of Social Security Disability and any
form of employer provided disability pension.” SAC ¶ 17. Levitant’s second cause of action
alleges that his First Amendment rights were violated when the WCB denied his motion to
transfer venue and to appear telephonically. SAC ¶¶ 30–31. While Levitant’s arguments about
the content of the WCB’s decisions may form the basis of a direct appeal—and indeed, Levitant
has appealed the decision to the Third Department, id. ¶ 6—they cannot form the basis of a
Section 1983 claim. Under the doctrine of judicial immunity and the 1996 Amendments, this
Court has no authority to direct the WCB “to determine if wage loss can be adjudicated . . .
without requiring proof of attachment to the labor market, to transfer the venue of the Plaintiff’s
worker’s compensation hearings, to direct that hearings accommodate the Plaintiff’s medical
condition, [or] to compensate the Plaintiff for the prior and ongoing violation of his civil rights.”
SAC ¶ 38. Therefore, allowing amendment of any claims against the State Defendants would be
Failure to State a Claim Against City Defendants
The City Defendants argue that the claims against them must be dismissed because to the
extent the City was involved in a deprivation of Levitant’s rights, it was only insofar as the City,
acting as Levitant’s employer, denied him worker’s compensation benefits, and the WCB has
exclusive jurisdiction over worker’s compensation claims. See City Mem. at 5–8, 9.
Tellingly, Levitant’s prayer for relief seeks relief only from the WCB and does not
mention the City Defendants at all. See SAC ¶¶ 37–39. Where the SAC does mention the City
Defendants, it describes two types of behavior: first, the City’s initial denial of benefits to
Levitant, id. ¶¶ 2, 4, 6, and second, the City’s argument during WCB proceedings that Levitant
was required to demonstrate attachment to the labor market, id. ¶¶ 15–16.9 To the extent that
Levitant believes the City Defendants should not have denied his application for worker’s
compensation, that claim may only be adjudicated by the WCB and this Court lacks jurisdiction
to hear it. See The Homeless Patrol v. Joseph Volpe Family, No. 09 Civ. 3628 (GBD) (FM),
2010 WL 2899099, at *17 (S.D.N.Y. June 29, 2010) (noting that a plaintiff’s only remedy
following the denial of a worker’s compensation claim was a direct appeal through the WCB
process), report and recommendation adopted by 2010 WL 2899076 (S.D.N.Y. July 22, 2010),
aff’d 425 F. App’x 60 (2d Cir. 2011); see also Sims v. New York City Dep’t of Parks and
Recreation, No. 08 Civ. 5741 (JSR), 2010 WL 46370, at *3 (S.D.N.Y. Jan. 6, 2010) (“[T]here is
no subject matter jurisdiction for Plaintiff’s remaining [worker’s compensation] claims, because
such claims fall within the exclusive jurisdiction of the New York Workers’ Compensation
Law.”). To the extent that Levitant’s claims against the City Defendants are based on the
arguments made by Defendant Carter in defending against Levitant’s workers’ compensation
claim before the WCB, Defendant Carter enjoys absolute immunity from suits for damages
arising from “acting as a government attorney in defense of a civil suit against the City of New
York.” Washington v. Alston, 172 F.3d 39, 1999 WL 66152 (Table) (2d Cir. 1999); see also
Spear v. Town of West Hartford, 954 F.2d 63, 66 (2d Cir. 1992) (“Such immunity extends . . . to
government attorneys defending civil suits . . . .”). Even as amended in the SAC, then,
Levitant’s claims against the City Defendants could not overcome a motion to dismiss, and
amendment is denied as futile.
Levitant makes no reference to City Defendants when alleging that the WCB retaliated against him. Id. ¶ 24.
When discussing his claim for change of venue, Levitant argues that the City Defendants injured him “by virtue of
the Board’s refusal to change venue.” Id. ¶ 32. Levitant seems to be suggesting that the City Defendants are
ultimately responsible for the WCB’s actions because their refusal to pay Levitant worker’s compensation led him to
seek an adjudication from the WCB.
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