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FRIDMAN v. CITY OF NEW YORK

January 28, 2002

MIKHAIL FRIDMAN PLAINTIFF,
V.
THE CITY OF NEW YORK, HS SYSTEMS, INC., MARVA LIVINGSTON HAMMONS AND AURELIO SALON, JR., M.D., DEFENDANTS.



The opinion of the court was delivered by: Marrero, District Judge.

DECISION AND ORDER

Plaintiff Mikhail Fridman (hereinafter "Fridman") brought this action under 42 West Page 644 U.S.C. § 1983, 42 U.S.C. § 1985(c), 42 U.S.C. § 12133, Article 1 §§ 6 and 11 of the Constitution of the State of New York, New York State Civil Rights Law § 40-c, and New York state law regarding medical malpractice, negligence, and breach of contract. The named defendants are the City of New York (hereinafter "City"), HS Systems, Inc. (hereinafter "HSS"), New York City Commissioner of Social Services Marva Livingston Hammons (hereinafter "Hammons") and Dr. Aurelio Salon Jr. (hereinafter "Salon") (collectively "Defendants"). Fridman alleges that Defendants violated his rights by performing negligent medical evaluations and wrongly assigning and compelling him to do strenuous work, thereby causing him to suffer a heart attack, depression and sexual dysfunction. Defendants brought motions for summary judgment against all of Fridman's claims, asserting that Fridman cannot show that the conduct of HSS or Salon constituted state action, that Fridman was not deprived of any right protected under the federal statutes he invokes and that there are no bases in law or fact for the remaining claims. For the foregoing reasons, Defendants' motions for summary judgment are granted.

I. FACTUAL BACKGROUND

Despite the volume of briefing in this matter, remarkably the basic facts underlying the action are not in dispute.*fn1 Fridman, along with his wife Eleanora Zlotnikova (hereinafter "Zlotnikova") and child, arrived in the United States in September 1995. Fridman applied for public assistance on January 15, 1996. During the application process, Zlotnikova served as Russian-English translator because Fridman spoke little English. They qualified for Aid to Dependent Children of Unemployed Parents (hereinafter "ADC/U"), a federally funded public assistance program administered by, inter alia, the City's Human Resources Administration (hereinafter "HRA") and the City's Office of Employment Services (hereinafter "OES").

At the time of their application, a case worker informed Fridman and his wife that as a condition of receiving ADC/U benefits, one of them must participate in the City's Work Experience Program (hereinafter "WEP"). WEP may be more commonly known as "workfare"; under WEP, as a condition of ADC/U benefits, able-bodied recipients are required to perform some work for the City. WEP was designed to prepare "people on public assistance for employment and allow them to fulfill their reciprocal obligation to the City for receiving benefits." (Diamond Dep., at 48, 53.)

During that meeting, Fridman stated that he would be the one to work, and that he was physically able to work. Also on that date, he was provided with, and signed, a Notification of Employability and of Right to Contest form which clearly informed Fridman of his right to a fair hearing on the issue of employability and set forth the procedures for obtaining a fair hearing. Fridman and his family began receiving cash assistance, Medicaid and food stamps.

By letter dated February 27, 1996, OES informed Fridman that his work assignment assessment was scheduled for March 13, 1996. Fridman attended this interview and was assigned to clean streets for the City's Department of Sanitation for 55 hours every two weeks. He began this assignment in late March 1996.

On April 19, 1996, Fridman returned from work flushed and went to First City Medical Group in Brooklyn for an examination. Fridman was diagnosed with high blood pressure and was sent to the emergency room at Victory Memorial Hospital. He was prescribed Vasotec, a medication for high blood pressure, and was discharged that day. Fridman's blood pressure remained under control so long as he took his medication.

Immediately following April 19, 1996, Fridman stopped reporting to his WEP assignment, but continued to attend a course in major home appliance repair, through the Federal Employment Guidance School, that met five mornings a week. At a follow-up examination at First City Medical Group, Fridman requested and obtained a letter from Dr. Gabinsky stating that he was under evaluation for hypertension and unable to perform hard work (hereinafter the "Gabinsky Letter"). Zlotnikova sent the Gabinsky Letter to Fridman's OES caseworker. Shortly thereafter, Fridman received a letter instructing him to attend an appointment on June 20, 1996, at OES.

At the June 20, 1996 appointment, Fridman submitted a formal request for a medical exemption from his WEP assignment due to high blood pressure and scheduled an appointment for an employability assessment examination.

On June 28, 2001, Fridman attended the first part of a two-part employability assessment examination conducted by HSS. HSS is a private corporation that, pursuant to a contract with the HRA, performs medical evaluations of applicants for exemption from the work requirements of the WEP program. HSS also performs work under contract for private sector entities. HSS's performance is governed by a contract with HRA that sets forth a detailed protocol for the examinations. (Jones Aff., ¶¶ 11, 16, Ex. C (hereinafter the "Contract") at 5-17, 21-24.)

The examination may have as many as four parts; all applicants for exemption undergo the first two. During the first part of the examination the applicant undergoes a specific set of tests. During the second part of the exam, the applicant appears for his appointment and is assigned to the first available physician at HSS's facility. The physician uses the test results and his independent examination of the applicant at that appointment to make an employability assessment. If the physician finds the applicant to be employable with limitations, he is to complete certain forms, provide that paperwork to the applicant, and the applicant is directed to the OES office located in the same building. At that point, the roles of HSS and the physician end and neither one has any further influence on the OES's selection of a work assignment.

An applicant would undergo the third and fourth parts of the employability assessment examination only if, during the second part of the examination, the physician assesses him to be permanently disabled.

A further aspect of the contractual relationship between HSS and the City bears mention. HSS physicians are paid based on the number of applicants they evaluate. There are no financial incentives in the Contract to encourage a physician to find patients employable. Indeed, according to the statistics that HSS must keep pursuant to the Contract, HSS physicians find OES applicants for exemption to be employable less frequently than they find them unemployable.

In this particular case, on July 2, 1996, Fridman, accompanied by his wife, appeared for the second part of the examination. Salon, a physician employed by HSS, was assigned to conduct the examination, which Fridman alleges lasted between three and five minutes. Fridman alleges that HSS engaged in a pervasive pattern and custom of performing the second part of the examination in a cursory manner and of failing to notify applicants of HSS's assessment or of their rights. To this end, Fridman submits the affidavits of two other men who attest to their having spent a brief period with the HSS physician during the second part of the HSS examination for purposes of employability assessment and to not having been informed by the physician, or OES caseworker, of their assessment or rights to a fair hearing. (Rosemin Aff.; Bradley Aff.)*fn2

Salon found that Fridman had a history of hypertension, joint pains, decreased visual acuity and elevated cholesterol. (Kaufman Decl., ¶ 19, Ex. Q; Salon Dep., at 70, 85.) Salon gave Fridman notice of the limited purpose of his examination and referred Fridman to seek further attention for his elevated cholesterol from his primary care physician. (Salon Dep., at 92; Jones Aff., ¶ 32, Ex. E.)

Salon does not recall the particular assessment, but was able to explain the assessment form he completed and state his practice and routine which was to complete an employability assessment for OES based on the test results, independent examination and findings. Salon submitted an assessment of Fridman as "employable subject to limitations" and recommended that Fridman's work capacity was "light." (Kaufman Dec. ¶ 19, Ex. Q; Salon Dep., at 83-87.) Fridman asserts that Salon did not inform him of his classification status or the activities in which he might engage, like occasional, non-exertional crouching or climbing, and that no one else discussed Salon's assessment with Fridman.

After the examination, Fridman, along with Zlotnikova, met with Norma Claxton (hereinafter "Claxton"), an OES caseworker. Claxton, considering Salon's medical assessment and Fridman's geographic location, consulted a computer database of available work assignments and assigned Fridman to work as a maintenance worker at the Kingsboro Psychiatric Center, Brooklyn, NY. The assignment entailed 67 hours of light duty every two weeks beginning in July 15, 2000. During this meeting, Claxton also gave Fridman a Notice of Employability and Right to Contest form, which informed Fridman of his right to a fair hearing and set forth the procedures by which Fridman might avail himself of a conference or fair hearing on the issue of his employability. In particular, the written notice stated that:

If you request a fair hearing WITHIN TEN (10) DAYS of the effective date of this notice you will not have to comply with the employment related requirements as outlined above, even if the requirements were assigned to you before you decided to request a hearing, unless and until a fair hearing is issued which finds you employable. . . .

(Kaufman Decl., ΒΆ 22, Ex. T.) Fridman signed this document, thereby indicating that he had reviewed the ...


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