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D'ANGELO v. CITY OF NEW YORK

May 21, 1996

ANITA D'ANGELO, individually, as Legal Guardian of ANITA JEAN YGLESIAS, Infant, and as Administratrix of the Estate of SONIA YGLESIAS, Plaintiff, against THE CITY OF NEW YORK; MONTEFIORE MEDICAL CENTER; ALVIN J. GLICK, M.D., as a physician and/or psychiatrist assigned to the Rikers Island Correctional Facility; THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; MOUNT SINAI SCHOOL OF MEDICINE; JEFFREY MENKES, as Executive Director of the Psychiatric Ward at the City Hospital Center at Elmhurst; STANLEY BRODSKY, M.D., as Medical Director of the Psychiatric Ward at the City Hospital Center at Elmhurst; ETY MENDELOVICI, M.D., ALFONSO VANAGAS, M.D., and ALAN SANDMAN, M.D., as physicians and/or psychiatrists assigned to the Psychiatric Ward at the City Hospital Center at Elmhurst; MARY KELLEY, CYNTHIA BAILEY, ELLA JOHNSON, ENOLA RYAN, AMELIA FLORES and ELVIRA GRIFFITH, as nurses assigned to the Psychiatric Ward at the City Hospital Center at Elmhurst, individually and in their official capacities, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 42 U.S.C. § 1983, on November 8, 1994, plaintiff Anita D'Angelo, individually, as legal guardian of Anita Jean Yglesias, and as administratrix of the estate of Sonia Yglesias filed the instant action asserting constitutional claims and pendent state claims of wrongful death and fraud. Plaintiff's claims arise out of the death of incarcerated prisoner Sonia Yglesias in 1982 while in the custody and care of defendants. Plaintiff alleges that defendants violated Yglesias's and plaintiff's constitutional and statutory rights by, inter alia, acting with deliberate indifference to Yglesias's serious medical needs and by fraudulently concealing the nature and cause of Ygelesias's death. Plaintiff further alleges that they first learned of the true facts and circumstances surrounding Yglesias's death on or about December 16, 1991 when a newspaper article on Yglesias's death was published.

 Pursuant to Federal Rule of Civil Procedure 56, defendants move for summary judgment on various grounds. Counsel for all parties appeared before this Court for Oral Argument on February 9, 1996, and for supplemental Oral Argument on April 19, 1996. For the reasons that follow, defendants' motion is granted as to the fraud and wrongful death claims and denied as to the § 1983 claims.

 Defendants first argue that plaintiff's § 1983 claims are barred by the statutes of limitations. Defendants contend that plaintiff's § 1983 claims accrued in 1982 when Yglesias died and expired three years thereafter. See Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989). Defendants further assert that assuming defendants concealed the cause of Yglesias's death, under the fraudulent concealment doctrine set forth in N.Y. Civ. Prac. L. & R. § 203(g) (McKinney 1990), the § 1983 claims were tolled until their alleged discovery on December 16, 1991 and expired two years later. *fn1" Therefore, defendants contend that plaintiff's § 1983 claims, filed November 8, 1994, are untimely.

 In support of their argument that § 203(g) applies, defendants cite Cestaro v. Mackell, 429 F. Supp. 465 (E.D.N.Y. 1977), aff'd by summary order, 573 F.2d 1288 (2d Cir. 1977). In Cestaro, the court applied the fraudulent concealment tolling provision set forth in § 203(g) to hold that a § 1983 claim filed more than two years after a plaintiff could have reasonably discovered that he had a § 1983 claim was untimely. Id. However, no case in this circuit since Cestaro has held that § 203(g) governs the tolling of § 1983 claims where there is an allegation of fraudulent concealment.

 Instead, more recent decisions in this circuit have treated the issue of when a cause of action accrues in § 1983 actions as an issue to be resolved by federal, not state, law. See Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995); Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994); Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied, 462 U.S. 1131, 77 L. Ed. 2d 1366, 103 S. Ct. 3111 (1983). Under the federal law of accrual, to be entitled to summary judgment, defendants must establish that no genuine issue of material fact exists as to whether plaintiff could, with the exercise of reasonable diligence, have been aware of the claim within three years of the filing of this complaint on November 8, 1994. See Fed. R. Civ. P. 56(c). Since a rational jury could conclude that plaintiff could not have reasonably been aware of this claim until December 16, 1991, defendants' motion must be denied.

 Similarly, there are also genuine issues of material fact as to whether the federal fraudulent concealment doctrine tolls the statute of limitations on plaintiff's § 1983 claims. Under the federal fraudulent concealment doctrine, the statute of limitations would be tolled until the plaintiff could reasonably have discovered the injury and its cause, here arguably on December 16, 1991, and would expire three years thereafter. See Pinaud, 52 F.3d at 1157; Keating v. Carey, 706 F.2d 377, 381-82 (2d Cir. 1983); Eisert v. Town of Hempstead, 918 F. Supp. 601, 1996 WL 103969, at *5 (E.D.N.Y. 1996); Rodriguez v. Village of Island Park, Inc., 1991 U.S. Dist. LEXIS 9469, No. 89 CV 2676, 1991 WL 128568, at *9 (E.D.N.Y. July 2, 1991). It follows that defendants' motion must be denied for this reason as well.

 However, plaintiff's wrongful death claims are barred by the statute of limitations. *fn2" Generally, the statute of limitations for a wrongful death claim expires two years after the date of the decedent's death, here August 4, 1982. See N. Y. Est. Powers & Trusts Law § 5-4.1 (McKinney 1981). Where, as here, a guardian was appointed for the Yglesias's infant child Anita Yglesias who is the sole estate distributee, the statute of limitations for a wrongful death claim is tolled until the appointment of her guardian on June 4, 1992, more than two years prior to the filing of these claims. *fn3" See Hernandez v. NYCHHC, 78 N.Y.2d 687, 578 N.Y.S.2d 510, 513, 585 N.E.2d 822 (1991); Kemp v. City of New York, 617 N.Y.S. 2d 801, 208 A.D.2d 684, (N.Y. App. Div. 1994); Amended Complaint ("Am. Compl.") P 3.

 In addition, plaintiff's fraud claims are barred by the statute of limitations. The statute of limitations for a fraud claim is the longer of six years from the date of commission of the fraud or two years from the date of discovery of the fraud. N.Y. Civ. Prac. L. & R. § 213(8) (McKinney 1990); see, e.g., Baratta v. ABF Real Estate Co., Inc., 215 A.D.2d 518, 627 N.Y.S.2d 52 (N.Y. App. Div. 1995). Here, plaintiff alleges that in 1982 defendants misrepresented the cause of her death to Yglesias's family and others. Am. Compl. PP 91-95. In addition, plaintiff alleges that at some time between 1982 and 1985, defendants fraudulently altered Yglesias's medical records in an effort to conceal the cause of Yglesias's death or their role therein. Id. P 77. Finally, plaintiff alleges that between 1980 and 1986, defendants fraudulently withheld from the New York Mental Hygiene Department ("NYMHD") facts relevant to the NYMHD's investigation into Yglesias's death, and fraudulently withheld from plaintiff the results of that investigation. Id. PP 97, 102-04, 107-08, 111. Plaintiff has alleged no factual basis to support a rational inference that defendants committed fraud on or after November 8, 1988. Moreover, the last date which plaintiff claims she could have reasonably discovered the fraud, December 16, 1991, is more than two years from the date the complaint was filed. It follows that plaintiff's fraud claims are time barred. *fn4"

 Defendants' motion for summary judgment on the ground that plaintiff cannot establish that defendants, including the Montefiore Medical Center and Mount Sinai School of Medicine and its medical staff, acted "under color of state law," see 42 U.S.C. § 1983 (1994), must be denied because defendants have failed to meet their burden of establishing that no genuine issue of material fact exists as to that issue. *fn5" See West v. Atkins, 487 U.S. 42, 54, 56, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988) ("Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights."); see also Toombs v. Bell, 915 F.2d 345, 347-48 (8th Cir. 1990); Faucher v. Rodziewicz, 891 F.2d 864, 868 (11th Cir. 1990); Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1221 (5th Cir. 1987), modified on denial of reh'g, 819 F.2d 545 (5th Cir. 1987), cert. denied, 484 U.S. 1010 (1988).

 Moreover, defendants' motion for summary judgment on the ground that plaintiff fails to state a cognizable constitutional claim must likewise be denied. The Court finds that defendants have failed to meet their burden of establishing that plaintiff has alleged no facts affording a rational inference that defendants violated Yglesias's constitutional rights, inter alia, to be free from cruel and unusual punishment, see Estelle v. Gamble, 429 U.S. 97, 105-06, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1988); Doe v. New York City Dep't of Social Servs., 649 F.2d 134, 143, 145 (2d Cir. 1981), reaff'd 709 F.2d 782 (2d Cir. 1983), cert. denied, 464 U.S. 864 (1983), or to due process. See West, 487 U.S. at 58 (Scalia, J., concurring) ("[A] physician who acts on behalf of the State to provide needed medical attention to a person involuntarily in state custody (in prison or elsewhere) and prevented from otherwise obtaining it, and who causes physical harm to such a person by deliberate indifference, violates the Fourteenth Amendment's protection against the deprivation of liberty without due process.") (citing Youngberg v. Romeo, 457 U.S. 307, 315, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982)); Barrett v. United States, 689 F.2d 324 (2d Cir. 1982).

 Defendants further argue that, under the doctrine of res judicata, plaintiff's § 1983 claims are barred by the dismissal of two state court actions in which plaintiff could have raised the instant § 1983 claims, but did not. In 1994, plaintiff filed an action in New York Supreme Court, Kings County against the New York City Health and Hospitals Corporation ("NYCHHC") and the City of New York, claiming medical malpractice, negligence and wrongful death arising out of Yglesias's death. Defendants' Statement Pursuant to Local Rule 3(g) ("Defs.' 3(g) Stmt.") P 1. Apparently, plaintiff had not filed a timely notice of claim, a prerequisite for instituting state claims against New York City and the NYCHHC. By order dated June 28, 1994, the New York Supreme Court, Kings County denied plaintiff's motion for leave to file a late notice of claim (the "June 28, 1994 order"). Id. P 3. By order dated July 17, 1995, the Appellate Division, Second Department ("Second Department") granted defendants' unopposed motion to dismiss plaintiff's appeal from the June 28, 1994 order for failure to prosecute. Defs.' 3(g) Stmt., Exh. E-1.

 On July 28, 1994, plaintiff served defendants New York City, NYCHHC, and certain individual defendants herein with a summons and complaint in a related action in New York Supreme Court, Queens County asserting state claims of, inter alia, negligence, malpractice and wrongful death. Id. P 7 & Exh. F. While the instant action was pending and in light of the Second Department's dismissal of the Kings County action, counsel for plaintiff and defendants entered into an attorneys' stipulation discontinuing ...


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