The opinion of the court was delivered by: Marrero, District Judge.
Plaintiff Mikhail Fridman (hereinafter "Fridman") brought this
action under 42
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.
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").
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
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 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
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.;
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
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., ¶ 22, Ex. T.) Fridman signed this document,
thereby indicating that he had reviewed the ...