To state a claim for an equal protection violation, Torres
must allege that a government actor intentionally discriminated
against him. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 213, 227-29, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).
Defendants sole argument for dismissing the equal protection
claim is that Torres does not allege that he was subjected to
intentional discrimination. In fact, Torres does allege that he
suffered intentional discrimination. He alleges that the
defendants applied the DOC sick leave policy in a disparate
manner, through harassment and other means, against him and
others slated for permanent disability. Accordingly, the
Defendants' motion to dismiss Torres's equal protection claim is
The Defendants argue that Torres's allegation of a conspiracy
are vague and conclusory and thus insufficient to state a claim
under § 1983. In his response to the motion, Torres fails to
address this argument or state any reason why his conspiracy
claim should not be dismissed. Accordingly, to the extent Torres
asserted a claim for conspiracy, it is dismissed.
Finally, Defendants argue that Torres has failed to state a
claim for medical malpractice against Drs. Okonta and Barouch,
because he has not even claimed that he was ever treated by
either Dr. Barouch or Okonta, but rather merely that they read
medical reports from other psychiatrists. The Defendants also
argue that Torres has failed to comply with N.Y. C.P.L.R. §
3012(a) by filing a certificate of merit.
Under New York law, the requisite elements of proof in a
medical malpractice action are (1) a deviation or departure from
accepted practice, and (2) evidence that such departure was a
proximate cause of injury or damage. See Lyons v. McCauley,
252 A.D.2d 516, 517, 675 N.Y.S.2d 375, 376 (2d Dep't 1998).
Here, Torres fails to allege, and admits that he does not even
know, whether Drs. Okonta and Barouch are even medical doctors.
He does, however, allege that he had a professional medical
relationship with both doctors, as either psychologists or
psychiatrists for DOC. The claim is not specific enough to
survive a motion to dismiss, but leave to re-plead will be
As regards the certificate of merit, the Court embraces the
well accepted policy that actions should be considered on their
merits, particularly when there is no showing of prejudice
suffered by the movant. See American Alliance Ins. Co. v. Eagle
Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996). This Court could find
no case where a medical malpractice claim was dismissed with
prejudice for failure to comply with the certification provision
in question. Accordingly, leave to file the certificate within
thirty (30) days of the date of this Decision and Order is
For the reasons set forth above, it is hereby
ORDERED that the defendants motion to dismiss [8-1] is GRANTED
in part and DENIED in part; and it is further
ORDERED that Torres's motion for leave to file a certificate
of merit pursuant to N.Y. C.P.L.R. § 3012(a) [10-1] is GRANTED.
The parties are directed to appear for a case management
conference before the Court in Courtroom 618, United States
Courthouse, 40 Foley Square, New York, New York on August 17,
2001 at 1:30 p.m.
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