2001." Plaintiffs further contend that they need discovery to establish
the basis for equitable tolling.
The doctrine of equitable tolling allows a plaintiff to file his claim
outside of the applicable statute of limitations if, because of some
action on a defendant's part, the plaintiff was unaware that the cause of
action existed. Long v. Frank, 22 F.3d 54, 58 (2d Cir. 1994); Simcuski
v. Saeli, 44 N.Y.2d 442, 443 (1978). Further, the doctrine of fraudulent
concealment prevents a party from fraudulently concealing wrongdoing
until after the tolling of the statute of limitations, New York v.
Hendrickson Brothers, Inc. 840 F.2d 1065, 1083 (2d Cir. 1978), and the
related doctrine of spoliation seeks to discourage litigants from
intentionally or negligently disposing of crucial items of evidence
before an adversary has an opportunity to inspect them. Kirkland v. New
York City Housing Authority, 236 A.D.2d 170 (1st Dept. 1997).
Based upon the factual disputes that underlie the question of whether
any of these equitable doctrines should apply, the motion is denied.
2. Merits of "assault & battery claim."
Defendants also argue that the assault and battery claim is without
merit and should be dismissed. In this regard, defendants argue that the
mere placing of a note in a patient's emergency crisis folder by a
nursing supervisor ordering that he be searched carefully upon admission
does not, as a matter of law, constitute an assault or battery in New
York. Furthermore, defendants argue that plaintiffs' complaint is wholly
devoid of any allegations that Cavanaugh committed an overt act
encouraging or aiding and abetting in the alleged unlawful search of
Aiken on January 19, 2000. Plaintiffs assert that Cavanaugh issued the
order without regard to whether there was lawful basis to do so. Compl.
¶¶ 32-38. Plaintiff further contend that "Aiken learned of the
order, and was placed in fear of a humiliating search." Compl. ¶¶
It is possible on this record that the plaintiffs could establish that
Cavanaugh's "standing order" constituted an intentional or deliberate act
directed at causing harm which would rise to the level of actionable
conduct in relation to the subject assault. See Crespi v. Ihrig,
99 A.D.2d 717, 718 (1st Dept. 1984), aff'd, 63 N.Y.2d 716 (1984)*fn25
Consequently, the motion to dismiss is denied.
I. ABSOLUTE IMMUNITY AS TO PLAINTIFFS' NEGLIGENCE CLAIM.
Plaintiffs also bring a common law negligence action against defendants
Nixon, Glebba, and Di Blasio for their alleged negligent failure to train
CDPC employees. Defendants contend that the claim must be dismissed as
matter of law.
Under New York State law, "when official action involves the use of
discretion, the officer is not liable for the injurious consequences of
that action even if resulting from negligence or malice." Tango v.
Tulevech, 61 N.Y.2d 34, 40 (1983); Della Villa v. Constantino,
246 A.D.2d 867, 869
(3d Dept. 1998). In other words, New York State
officials are entitled to absolute immunity in the exercise of their
discretionary powers. The authority for officials of the Office of Mental
Health to conduct training emanates from Mental Hygiene Law § 7.23 by
which the Legislature has unambiguously vested the relevant state
officials with the discretion to create and conduct training as they see
fit.*fn26 Moreover, the relevant statutes place this authority solely
in the hands of the Commissioner and facility directors and not his
"designees" as plaintiffs maintain. Compl. ¶ 137. As this power is
discretionary, defendants are entitled to absolute immunity from
plaintiffs' negligence claims and these claims must be dismissed.
For the reasons discussed above, defendants' motion is granted
in part and denied in part. In this regard:
The claims brought under Title II of the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq. and Section 504 of the Rehabilitation
Act of 1973 are DISMISSED;
All claims brought under 42 U.S.C. § 1983 and state common law
seeking monetary damages against the State of New York (including claims
against the Capital District Psychiatric Center and the individual
defendants in their official capacities) are DISMISSED;
Defendant Nixon is granted qualified immunity on any claim asserting
personal liability against him on the ground that he promulgated the
Capital District Psychiatric Center's search policy; and
Defendants Nixon, Di Blasio and Glebba are granted qualified immunity
on any claims premised on the theory that they are individually liable
for failing to train staff on rules and procedures for searching patients
other than those contained in the CDPC policy.
The motion is, in all other respects, DENIED.
IT IS SO ORDERED.