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.
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.
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 the Queens County action "with prejudice" on October 23, 1995 (the "October 23, 1995 stipulation"). Defs.' 3(g) Stmt., Exh. J-1.
The doctrine of res judicata bars the subsequent litigation of claims which were raised or could have been raised in a previous action in which a court of competent jurisdiction rendered a final judgment on the merits. See Heimbach v. Chu, 744 F.2d 11 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 141, 105 S. Ct. 1842 (1985); Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir. 1968). Pursuant to Title 28 U.S.C. § 1738, a federal court must give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state in which they were rendered. See 28 U.S.C. § 1738 (1994); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984).
Generally, dismissal of an action for failure to satisfy a condition precedent is not "on the merits" for res judicata purposes. See Costello v. United States, 365 U.S. 265, 286, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961) (dismissal of immigration proceeding on ground of government's failure to file statutorily required affidavit of good cause was not "on the merits"); Saylor, 391 F.2d at 969 (dismissal for failure to prosecute due to inability to meet security bond precondition to suit not res judicata because defendant never forced to prepare to defend on merits).
This is especially true where, as here, defendants seek to bar plaintiff's § 1983 claims which are not subject to the notice of claim requirement, see Felder v. Casey, 487 U.S. 131, 141, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988); Finley v. Giacobbe, 827 F. Supp. 215, 219 (S.D.N.Y. 1993), and indeed were never even asserted in the state court action which was dismissed for failure to file a notice of claim. It follows that the Second Department's dismissal of plaintiff's appeal "with prejudice" is no bar to plaintiff's § 1983 claims. See Brown v. Bullock, 17 A.D.2d 424, 235 N.Y.S.2d 837, 841 (N.Y. App. Div. 1962); see also Saylor, 391 F.2d 965 (2d Cir. 1968); St. Vincent's Hosp. and Medical Cent. v. Div. of Human Rights, 553 F. Supp. 375, 378-79 (S.D.N.Y. 1982); cf. Felder, 487 U.S. at 139-41.
Defendants likewise failed to carry their burden of establishing that the October 23, 1995 stipulation constituted a disposition "on the merits" sufficient to preclude the § 1983 claims. See Brown, 235 N.Y.S.2d at 841; see also Stacey O. v. Donald P., 137 A.D.2d 965, 525 N.Y.S.2d 385 (N.Y. App. Div. 1988); In re Estate of Horton, 51 A.D.2d 856, 379 N.Y.S.2d 569 (N.Y. App. Div. 1976). In light of the fact that the Kings County action was untenable due to plaintiff's failure to file a timely notice of claim, the parties, fully aware that the § 1983 claims were being prosecuted in federal court, stipulated to the dismissal of the action "with prejudice."
See St. Vincent's Hosp., 553 F. Supp. at 378.
To hold that plaintiff's § 1983 claims are barred merely because the phrase "with prejudice" is often equated with "on the merits" would frustrate the intent of the parties as well as the purpose of the rules of preclusion as defined under New York law. See Stacey O., 137 A.D.2d at 965 ("Even where a dismissal is specifically "on the merits" or "with prejudice", the circumstances must warrant barring the litigant from further pursuit of his claim in order for those phrases to be given preclusive effect.") (citations omitted); Brown, 17 A.D.2d at 428 (dismissal "with prejudice" is not automatically "on the merits"). This is especially true where, as here, defendants were never put to the burden of defending on the merits in either state action. See Saylor, 391 F.2d at 969; St. Vincent's Hosp., 553 F. Supp. at 378-79.
Defendants' motion for summary judgment on the ground that the pendent state law claims must be dismissed because plaintiff failed to file a timely notice of claim must be denied. Pursuant to New York General Municipal Law § 50-e, a plaintiff asserting a state tort claim against the City of New York, its agencies, the NYCHHC, or officers, appointees or employees of a public corporation, must ordinarily file a notice of claim within ninety days of the alleged injury.
N.Y. Gen. Mun. Law § 50-e (McKinney 1986). However, a plaintiff asserting state tort claims against defendants who are employees of the City of New York or the NYCHHC in their individual capacity must file a notice of claim only if the individual defendant is found to be statutorily entitled to indemnification by the City of New York for the claims asserted. See N.Y. Gen. Mun. § 50-e(1)(b) (McKinney 1986).
Here, plaintiff contends that she asserts no state tort claims against the City of New York, its agencies or the NYCHHC, see Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment filed June 15, 1995 at 14 n.9, 17, and therefore no notice of claim is required. See Radvany v. Jones, 184 A.D.2d 349, 585 N.Y.S.2d 343 (N.Y. App. Div. 1992) (holding notice of claim not required where city not statutorily required to indemnify principal for intentional torts committed outside scope of duties); Kramer v. City of New York, 157 A.D.2d 404, 556 N.Y.S.2d 287, 290 (N.Y. App. Div. 1990) (notice of claim not required for fraud claim against city physician). Because the Court finds that defendants have failed to establish that no genuine issue of material fact exists as to whether the state claim defendants are statutorily entitled to indemnification,
defendants' motion for summary judgment on the ground that plaintiff failed to file a notice of claim must be denied. See Albano v. Hawkins, 82 A.D.2d 871, 440 N.Y.S.2d 327, 328 (N.Y. App. Div. 1981) (denying summary judgment where factual issues exist as to bus authority's duty to indemnify driver).
For the reasons set forth above and on the Record at the Oral Arguments, defendants' motion for summary judgment shall be and hereby is granted as to plaintiff's fraud and wrongful death claims, and denied in all other respects. It is further ordered that all parties shall complete all discovery on or before August 30, 1996, and a Pre-Trial Conference shall be held on September 13, 1996 at 10:30 a.m. in Courtroom 705.
Dated: New York, New York
May 21, 1996
John E. Sprizzo
United States District Judge