two years meant that no causal connection could be established); Bayard
v. Riccitelli, 952 F. Supp. 977, 987 (E.D.N.Y. 1997) (Nickerson, J.)
(holding that a one-year lapse was too long to support an inference of
For these reasons, the Rafiys' retaliation claim fails to survive
4. Qualified Immunity
Defendants also argue that Meinhard and Angelo are entitled to
qualified immunity on all Section 1983 — based claims (Counts One
through Three). Because all of the Rafiys' claims based on Section 1983
fail summary judgment on the merits with respect to all of the
Defendants, however, the Court finds it unnecessary to reach the issue of
qualified immunity. See Payne, ___ F. Supp.2d at ___, slip op. at 28,
2002 WL 31039460 (declining to decide the issue of qualified immunity
after ruling that no constitutional violation had takers place)
B. Sherman Act Claim Count Four)
Originally, the Rafiys attempted to make out an antitrust violation by
arguing that Meinhard's actions, including "transferring plaintiffs
patients to Meinhard's private medical partner, giving priority to
[Meinhard's private partners] concerning on-call schedules and clinics,
and referring patients to the [partners of Meinhard]. demonstrate
defendant Meinhard's predatory and anti-competitive conduct with specific
intent to monopolize the orthopedic market." Compl. ¶ 66. The Rafiys
have withdrawn this claim, however, Pls.' Opp'n at 2. so the Court need
not consider it.
For the reasons outlined above, the Defendants' motion for summary
judgment [Docket No, 41] is ALLOWED. Judgment shall enter for the
Defendants on all counts of the Complaint.
*fn2 To date the Rafiys have not submitted an affidavit from Dr.
Messirian confirming that these statements were uttered, nor have they
secured his availability to testify at trial. See Pls.' Opp'n at
*fn3 It seems to this Court that there may be aspects of "professional
privileges' that must be considered privileges, even though not enumerated
in writing at a particular hospital, because without such unenumerated
features of medical practice physicians would be unable to perform those
features of practice that are enumerated. For instance, surely in
addition to performing certain surgical procedures — the only
enumerated privileges here-privileges might include the right to use
operating rooms, the right to use nursing and anesthesiologic staff, the
right to use hospital computer systems for storing patient data, and the
like. As these are not enumerated, but nevertheless seem to be essential
constituent components of privileges, the reasonable conclusion is that
the enumerated definition is not the sole extent of privileges. The Court
declines to deviate from established New York analysis, however, as New
York state courts are surely more competent to decide what constitutes
hospital privileges in New York than this Court. Moreover, as the Court
holds that the post-deprivation grievance procedures available to the
Rafiys comport with due process requirements, the Court need not.
*fn4 The Rafiys apparently try to skirt the issue of available state law
post-deprivation remedies by stating that "[t]his determination to
withdraw plaintiff's clinical privileges was not random or unauthorized,
but was a deliberate decision made by Drs. Meinhard and Angelo." Compl.
¶ 43. This statement is significant, for the Second Circuit has
recognized a distinction between random or unauthorized deprivations of
liberty or property by state officials, for which the adequacy of state
post-deprivation remedies is the dispositive factor, Hellenic Am.
Neighborhood Action Comm., 101 F.3d at 880, and deprivations that occur
"in the more structured environment of established state procedures,
rather than random acts," i.e., complaints regarding the state procedure
itself, for which "the availability of postdeprivation procedures will
not, ipso facto, satisfy due process," id. The Rafiys attempt to
characterize their claim as falling into the second category, thus
freeing them from the need to seek relief under or demonstrate the
inadequacy of state law procedures.
It is clear from the Rafiys' complaint, however, that their grievance
is with the Defendants' failure to hold hearings under the bylaws, not
with the state procedures themselves. Compl. ¶¶ 46, 48. See Hellenic
Am. Neighborhood Action Comm., 101 F.3d at 881 (reaching the same
conclusion with respect to the plaintiff in that case, because there the
plaintiff "ma[de] no claim that the due process violation was caused by an
established state procedure, such as the City Charter," but instead
argued that "state officials acted in flagrant violation of the City
Charter"). Here, because the Rafiys' complaint is really about the random
and unauthorized actions of Dr. Meinhard. the availability of state law
post-deprivation remedies, and the failure by the Rafiys to avail
themselves of such remedies, lead this Court to conclude that the Rafiys
have no viable procedural due process claim.
*fn5 The Rafiys concede that if they are unable to secure Dr.
Messirian's presence at trial, this claim would not be viable, and would
likely be withdrawn. Pls.' Opp'n at 18. This convinces the Court that the
testimony of Dr. Messirian forms the entire basis upon which the Rafiys'
discrimination claims rests.
*fn6 The parties do not contest that the Rafiys are government employees
— employees of the county hospital. See Ezekwo v. New York City
Health & Hosp. Corp., 940 F.2d 775 (2d Cir. 1991) (medical resident
at Harlem Health Center a public employee). Accordingly, the public
concern doctrine is applicable to the Rafiys' claim.
*fn7 The May 13, 1999 letter from Philip Rafiy to the Medical Center
complaining of Meinhard's "personal vendetta" against him, Epstein
Decl.Ex. N; see supra p. 306 (describing the letter), was written after
the allegedly adverse action — removal from the on-call and
clinical schedules — was taken, and thus is not relevant to the
question of causation.
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