United States District Court, S.D. New York
April 19, 2004.
MICHAEL J. HASON, M.D., Plaintiff; -against- OFFICE OF PROFESSIONAL MEDICAL CONDUCT, MEDICAL BOARD OF THE STATE OF NEW YORK, DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK AND COMMISIONER; IRVING S. CAPLIN, DR. TERESA BRIGGS, and DR. FRED LEVINSON, in their individual and official capacities, Defendants
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION AND ORDER
Plaintiff was licensed to practice medicine in New York in 1993 and is
also an attorney licensed to practice law in this state. He has brought
this action, pro se, seeking declaratory and injunctive relief relating
to the revocation of his New York state medical license in November
1999, as well as compensatory and punitive damages. Defendants have now
moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction
and pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief may be granted. For the reasons set forth below, defendants'
motion is granted and the Amended Complaint is dismissed with prejudice.
In August 1999, the New York State Department of Health initiated a
proceeding against Dr. Michael J. Hason, charging him with medical
misconduct pursuant to New York Education Law § 6530(9)(d).*fn1 That administrative action against plaintiff was
premised on a February 24, 1998 decision of the Medical Board of
California denying his application for a California medical license on
the ground, inter alia, that he was "not emotionally stable [enough] to
safely practice medicine." See Statement of Charges in In the Matter of
Michael Jeffrey Hason, M.D., (Appendix A to Determination and Order,
attached to Declaration of Scott Fisher in Support of Defendants' Motion
to Dismiss at Exhibit B); Proposed Decision in the Matter of Michael J.
Hason, OAH No. N-9704117 at 4 (attached to Fisher Declaration at Exhibit
A). In the New York proceeding, Hason was charged with violating New York
Education Law § 6530(7): "[p]racticing the profession while impaired by
alcohol, drugs, physical disability, or mental disability."
An expedited hearing was held in New York in September of 1999 before a
three member panel of the New York Board of Professional Medical
Conduct (the "BPMC") pursuant to New York Public Health Law §
230(10)(p). At this hearing, plaintiff appeared pro se and offered
testimony of his therapist, David Molko, M.S.W., and a letter from his
treating psychiatrist, Robert M. Petrovich M.D., in support of Hason's
contention that although he had been diagnosed with "major depression,"
that condition was "currently in remission" and that he would be able to
"safely practice medicine." See Transcript of Referral Hearing dated
Sept. 2, 1999 at 4-9 (attached to Fisher Declaration at Exhibit D);
Letter from Dr. Petrovich dated August 29, 1999 (attached to Fisher
Declaration at Exhibit C).
On November 9, 1999, the panel issued its Determination and Order (the
"BPMC decision"). The panel concluded the California Medical Board
"appropriately denied [plaintiff's] application . . . based on [his]
psychiatric history." See Determination and Order at 3 (attached to Fisher
Declaration at Exhibit B). In its consideration of the appropriate
penalty, the BPMC panel wrote that it was "not convinced by Mr. Molko's
testimony that [plaintiff] was ready to resume all duties and
responsibilities involved in the practice of medicine." Id. at 5. It also
concluded that revocation of plaintiff's medical license would serve "to
protect the safety of the public until such time that [he] can demonstrate
that he is fully rehabilitated and is ready to resume all duties and
responsibilities as a physician in the state of New York." Id. Pursuant
to New York Public Health Law § 230(10)(p) and New York Education Law § 6
530(9)(d), the BPMC panel then revoked plaintiff's New York medical
license. Id. at 6.
Plaintiff next requested the Administrative Review Board of the New
York Department of Health (the "ARB") to nullify or modify the BPMC
decision pursuant to New York Public Health Law § 230(c)(4). Among the
errors Hason alleged to have taken place in the BPMC proceeding was that
the BPMC panel violated provisions of the Americans with Disabilities Act
of 1990 (the "ADA"), 42 U.S.C. § 12101 et. seq. See Administrative Review
Board Determination and Order No. 99-273 at 3 (attached to Fisher
Declaration at Exhibit E). However, the ARB held that it lacked
jurisdiction to entertain allegations of ADA violations and wrote that
"we leave [Hason] to raise those issues in the courts." Id. at 4. The ARB
also sustained the BPMC panel's finding that plaintiff was unfit to
practice medicine under N.Y. Educ. Law § 6530(9)(d) because the BPMC was
entitled to rely on the holding of the California decision. Nevertheless, the ARB disagreed with the penalty imposed
by the BPMC-revocation of plaintiff s medical license-and imposed instead
a suspension of his medical license for "one year certain and for such
time thereafter until [plaintiff] can demonstrate to a BPMC Committee
[his] fitness to return to practice." Id. at 4-6.
Plaintiff appealed that ARB decision to the Appellate Division of the
New York Supreme Court, Third Judicial Department, pursuant to Article 78
of New York Civil Procedure Law and Rules. In his legal memorandum in
that Article 78 proceeding, Hason argued, among other points, that: 1)
the BPMC and ARB decisions discriminated against him on the basis of his
disability in violation of the ADA and New York Human Rights Law, New
York Executive Law § 296; 2) the BPMC hearing and the ARB review deprived
him of the right to due process because he was allocated the ultimate
burden of proof; and 3) the BPMC panel members acted out of bias against
him and violated his right to equal protection. See Petitioner Dr.
Hason's Amended Brief at 3-16, 16-19, 20-22 (attached to Fisher
Declaration at Exhibit I).
As a preliminary matter, the Appellate Division noted in the resulting
opinion that, in Article 78 proceedings, its jurisdiction was limited to
review of the ARB decision and, therefore, it lacked authority to review
the BPMC decision. See In the Matter of Hason v. Department of Health,
295 A.D.2d 818, 822 (3rd Dept., 2002) ("to the extent that petitioner
challenges the findings of the Hearing Committee, we note that our review
of the Hearing Committee's decision is precluded as petitioner sought
review of such decision from the ARB") (internal citations omitted).
Substantively, the Appellate Division concluded that the ARB decision had
ua rational basis which is factually supported and was not arbitrary and
capricious, affected by an error of law or an abuse of discretion" and
affirmed the ARB's finding as to plaintiff's professional misconduct. Id. The Appellate Division further found plaintiff's
arguments of lack of due process and of bias to be "unavailing." Id. With
respect to the penalty imposed, however, the Appellate Division held that
the indefinite suspension of plaintiff's medical license imposed by the
ARB exceeded the ARB's statutory authority. See id, Accordingly, the
Appellate Division remitted the matter to the ARB for reconsideration of
an appropriate penalty.
Upon remittal from the Appellate Division, the ARB in turn remanded the
proceeding in September 2002 to the BPMC panel in order to gather
"additional evidence or testimony regarding [plaintiff's] mental status"
and to provide a new penalty recommendation. See New York Department of
Health Administrative Review Remand Order No. 99-273R at 2 (attached to
Fisher Declaration at Exhibit F). On remand, the BPMC panel ordered
plaintiff to submit to a psychiatric examination by Melvin Steinhardt
M.D., who then issued a report in May of 2003. Approximately two months
later, the BPMC recommended, based in part upon Dr. Steinhardt's report,
that plaintiff "should be allowed to practice medicine in New York upon
the condition that he remain on the appropriate medication and continue
psychotherapy" and that such monitoring should continue for three years.
See Supplemental Determination in the Matter of Michael Jeffery Hanson
M.D. (the "Supplemental Determination") at 8 (attached to Reply
Declaration of Scott Fisher at Exhibit 1).
On the basis of that recommendation by the BPMC, the ARB issued a new
Determination and Order in October of 2003 that permitted plaintiff to
practice medicine "if [he] remained on appropriate medication and
continued with psychotherapy," along with other conditions. See ARB
Determination and Order dated October 24, 2003 ("2003 ARB Order") at 6-7
(attached to Letter of Assistant Attorney General James M. Hersler dated
February 26, 2004). In addition, the 2003 ARB Order placed plaintiff on probation for five years and
restricted his practice to a hospital setting, rather than permitting him
to engage in a solo practice. See 2003 ARB Order at 7.
Plaintiff instituted this action on November 14, 2002 to challenge the
revocation of his New York medical license-11 months prior to the
issuance of the 2003 ARB Order. Plaintiff's Amended Complaint alleges
that the BPMC decision violated plaintiff's rights under 1) the Americans
with Disabilities Act ("ADA"), 2) the Rehabilitation Act of 1974,*fn2
29 U.S.C. § 701 et. seq. and 3) the due process clause of the Fourteenth
Amendment to the United States Constitution. He fails to identity any
particular provision of the ADA or the Rehabilitation Act that he claims
had been violated. Plaintiff also challenges the constitutionality of New
York Education Law § 6330(10)(d) under the due process clause of the
Fourteenth Amendment on the ground that the statute impermissibly places
the burden of proof on a respondent in a BPMC proceeding. Finally,
plaintiff claims that the individual defendants-members of the BPMC
panel-deprived him of the right to substantive due process in violation of
42 U.S.C. § 1983 and also conspired to deprive him of his civil rights in
violation of 42 U.S.C. § 1985. Plaintiff seeks declaratory and injunctive
relief as well as compensatory and punitive damages.
Defendants offer a variety of arguments in support of their motion to
dismiss, including that, in light of Appellate Division decision in In
the Matter of Hason, 295 A.D.2d 818, application of the Rooker Feldman
doctrine requires dismissal of this action for lack of subject matter
jurisdiction, Defendants also contend that plaintiff's claims are barred
by the statute of limitations because the initial complaint was filed on November 14,
2002, more than three years after the BPMC decision had been issued on
November 9, 1999. See Memorandum of Law in Support of Defendants' Motion
to Dismiss the Complaint at 1-2.
A. Legal Standards
1. Lack of Subject Matter Jurisdiction
When defendants move to dismiss a complaint pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction, a "[p]laintiff bears
the burden of showing by a preponderance of the evidence that subject
matter jurisdiction exists." APWU v. Potter, 343 F.3d 619 (2d Cir. 2003)
(internal citations omitted). In addition to facts contained in the
pleadings, this Court can also consider other evidence contained in
affidavits or public documents. Sec Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006 (2d Cir. 1986), All material factual inferences will be
construed in the plaintiffs favor; see Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000); however, "argumentative inferences
favorable to the party asserting jurisdiction should not be drawn."
Atlantic Mutual Insurance Co. v. Balfour Madame Int'l Ltd., 968 F.2d 196,
198 (2d Cir. 1992) (internal citations omitted).
2. Failure to State a Claim
In evaluating a Fed.R.Civ.P. 12(b)(6) motion to dismiss a complaint,
this Court looks to facts contained in the pleadings, including documents
attached to or referenced in the Amended Complaint, as well as public
records such as administrative decisions in California and New York pertaining to plaintiff's medical license, See Taylor v. Vermont
Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Cortec Indus., Inc. v.
Sum Holdings, L.P., 949 F.2d 42, 47 (2d Cir. 1991); Cameron v. Church,
253 F. Supp., 2d 611, 618 (S.D.N.Y. 2003). This Court presumes that the
facts alleged in the Amended Complaint are true and draws all reasonable
inferences in the plaintiff's favor. See Lee v. Bankers Trust Co.,
166 F.3d 540, 543 (2d Cir. 1999). Plaintiff's claim may be dismissed only
if "it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief." Drake v.
Delta Airlines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957)).
B. Subject Matter Jurisdiction and the Rooker Feldman Doctrine
Defendants' motion to dismiss the complaint for lack of subject matter
jurisdiction will be addressed at the outset because it concerns a
court's "very power of the court to hear case." W. 95 Housing Corp. v.
N.Y. City Dep't of Housing Preservation and Development, 01 Civ. 1345,
2001 U.S. Dist. LEXIS 7784 at *9-10 (S.D.N.Y. Jun. 12, 2001) (citing
United States ex rel. Kreindler & Krcindler v. United Tech. Corp.,
985 F.2d 1148, 1155-56 (2d Cir. 1993)); see also Ruhrgas AG, v. Marathon
Oil Co., 526 U.S. 574, 584-485, 119 S Ct. 1563, 143 L.Ed.2d 760 (1999)
(holding that the doctrine of separation of powers requires resolution of
jurisdictional issues before a court examines the merits of an action).
Defendants contend that this Court is precluded from exercising subject
matter jurisdiction in this action pursuant to the Rooker Feldman
doctrine because the Appellate Division has already considered
plaintiff's legal theories and has found them to be without merit. See In
the Matter of Hason, 295 A.D.2d 818. The Rooker Feldman doctrine, named after the actions of Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415, 68 L Ed 362, 44 S.Ct. 149 (1923)
and District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462,
75 L.Ed.2d 206, 103 S Ct. 1303 (1982), holds that "inferior federal courts
have no subject matter jurisdiction over cases that effectively seek
review of judgment of state courts and that federal review, if any, can
occur only by way of a certiorari petition to the Supreme Court." Moccio
v. New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir.
1997), This doctrine "reflects the principle set forth in 28 U.S.C. § 1257
that the Supreme Court is the only federal court with jurisdiction" to
review state court judgments. Kropelnicki v. Siegel, 290 F.3d 118, 128
(2d Cir. 2002), The Rooker Feldman doctrine "bars those claims that
were adjudicated in a prior state court action, as well as those claims
that are `inextricably intertwined' with the state court judgment,"
Santini v. Connecticut Hazardous Waste Management Service, 342 F.3d 118
(2d Cir. 2003) (quoting Moccio 95 F.3d at 198-99).
As the Second Circuit has observed, whether an issue is "inextricably
intertwined" with a claim raised in state proceedings is easy to identify
at the outer limits. See Moccio 95 F.3d at 198-199, "If the precise
claims raised in a state court proceeding are raised in the subsequent
federal proceeding, Rooker Feldman plainly will bar the action." Id. In
contrast, if an issue was "never presented in the state court proceedings
and the plaintiff did not have an opportunity to present [it] in those
proceedings, [it is] not "inextricably intertwined" and therefore not
barred by Rooker Feldman." Id at 199.
To determine the status of an issue falling between those two
boundaries, this Court can seek guidance from the principle of collateral
estoppel under state law-New York law for this action. See DiBlasio v.
Novello, 344 F.3d 292, 296 (2d Cir. 2003). Accordingly, a claim asserted in this action is precluded pursuant to the Rooker Feldman
doctrine only if "(1) [it] was actually and necessarily decided [by the
Appellate Division], and (2) [plaintiff] had a full and fair opportunity
to litigate the issue [that] issue in [his Article 78] proceeding." Id.
(quoting Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995)); see also
Juan C. v. Cortines, 89 N.Y.2d 659, 667 (1997).
In his Article 78 proceeding, plaintiff addressed three arguments to
the Appellate Division that are relevant to this action. Applying the
principles identified above, this Court finds that plaintiff's first,
second, third and fifth causes of action are based on claims that have
either been presented to and decided by the Appellate Division in
plaintiff's Article 78 proceeding, or were otherwise "inextricably
intertwined" with a claim that has been presented to and opined upon by
the Appellate Division. As set forth below, those causes of action must
therefore be dismissed pursuant to the Rooker Feldman doctrine.*fn3
See Kropelnicki, 290 F.3d at 128 (citing Feldman, 460 U.S. at 482-83
n.16); Moccio, 95 F.3d at 198.
1. The First and Second Causes of Action Are Barred by the Rooker
Plaintiff alleges, in his first and second causes of action, violations
of his rights secured under the ADA and the Rehabilitation Act but does
not specify the nature of those claims. Construing the Amended Complaint
in a light most favorable to plaintiff, those causes of action state
claims both for unlawful discrimination on the basis of plaintiff s
disability and for failure by the BPMC or the ARB to provide him with reasonable accommodation. See
Henrietta v. Bloomberg, 331 F.3d 261
, 272-277 (2d Cir. 2003) (holding
that the ADA and the Rehabilitation Act prohibits both "disparate impact"
on the basis of disability and the failure to provide "reasonable
accommodation" to individuals with disability). "Because Section 504 of
the Rehabilitation Act and the ADA impose identical requirements," this
Court will consider plaintiff's first and second causes of action in
tandem. Rodriguez v. City of New York, 197 F.3d 611
, 618 (2d Cir. 1999);
see also Henrietta, 331 F.3d at 272; Weixel v. New York City Bd. of
Educ., 287 F.3d 138
, 146 (2d Cir. 2002) (the ADA and the Rehabilitation
Act operate with substantially similar standards).
In his Article 78 proceeding before the Appellate Division, plaintiff
alleged that the BPMC decision violated his rights under the ADA.
Specifically, he contended that he had suffered unlawful discrimination on
the basis of his actual or imputed disability. See Petitioner Dr. Hason's
Amended Brief at 3 ("[i]t cannot be gainsaid that the sanction in New
York was imposed, because [the BPMC and the ARB] felt that Dr. Hason had
a disability, specifically, his prior bouts of depression . . ."),
Furthermore, plaintiff also argued before the Appellate Division that the
BPMC and the ARB failed to provide him with reasonable accommodation
based on his needs as a person with disability. See Id. at 13 (the BPMC
and ARB decisions [failed] "to address and consider the requirements of
the Americans with Disabilities Act (or the Rehabilitation Act, or the
New York Human Rights Law)"). The Appellate Division took note of those
arguments but found them to be without merit. In the Matter of Hason, 295
A.D. at 822 ("remaining claims . . . are unavailing, including those alleging
Accordingly, because plaintiff's first and second causes of
action-alleging violations of the ADA and the Rehabilitation Act on the
basis of unlawful discrimination he suffered or for the failure by the
BPMC to provide reasonable accommodation-state claims that have been
resolved against him by the Appellate Division, this Court lacks
jurisdiction to consider the merits of those causes of action pursuant to
the Rooker Feldman doctrine. See DiBlasio, 344 F.3d at 296. They are
therefore dismissed pursuant to Fed.R.Civ.P. 12(b)(1).
2. The Third Cause of Action Is Barred by the Rooker Feldman Doctrine
Plaintiff's third cause of action alleges selective enforcement by the
BPMC panel in violation of his right to due process and equal
protection. While the Appellate Division did not review the adequacy or
fairness of the proceeding against plaintiff before the BPMC panel,
plaintiff had made this allegation in his request to the ARB. See ARB
Determination and Order at 3 ("[Hason] also alleges that the Committee
decided a priori to impose the harshest sanction . . ."). The ARB
rejected those allegations and sustained the findings of the BPMC panel
that plaintiff had violated New York Education Law § 6 359(10)(d). See
Id. at 4 ("the [BPMC] Committee and their Administrative Officer acted
appropriately in refusing to allow [Hason] to relitigate the California
Board's findings . . ."). The ARB's decision on plaintiff's professional
misconduct, including this conclusion, was in turn upheld by the
Appellate Division. See In the Matter of Hason, 295 A.D.2d at 822. ("`we
conclude that the ARB's determination sustaining the charge of
professional misconduct . . . has a rational basis which is factually
supported and was not arbitrary and capricious, affected by an error of
law or an abuse of discretion"). Accordingly, this Court is precluded
from considering the merits of this cause of action pursuant to the Rooker Feldman doctrine. Sec Moccio, 95 F.3d at 198-99 ("[i]f the
precise claims raised in a state court proceeding are raised in the
subsequent federal proceeding, Rooker Feldman plainly will bar the
action"). It is therefore dismissed with prejudice pursuant to
3. The Fifth Cause of Action Is Barred by the Rooker Feldman Doctrine
Plaintiff's fifth cause of action seeks to invalidate the New York
Education Law § 6359(10)(d) for violation of his right to due process.
The legal theories underlying this claim were also presented in
plaintiffs submission in his Article 78 proceeding. See Petitioner's
Amended Brief at 17-18 ("the OPMC [BPMC] should not be permitted to rely
on the California decision to meet its burden of proof. . . . the use of
the California proceeding as a predicate for sanctioning in New York
violated procedural due process as applied to Dr. Hason"). The Appellate
Division wrote specifically that "[p]etitioner's remaining claims raised
under the rubric of denial of due process are unavailing . . ." See In
the Matter of Hason, 295 A.D.2d at 822. Because a New York state court
has already considered the claim presented in plaintiff's fifth cause of
action and resolved it against plaintiff, this Court lacks jurisdiction,
pursuant to the Rooker Feldman doctrine, to consider its merits.
Therefore, it will be dismissed with prejudice pursuant to Fed.R.Civ.P.
12(b)(1). See Moccio, 95 F.3d at 198-99.
4. The Fourth Cause of Action Is Not Barred by the Rooker Feldman
Plaintiff's fourth cause of action alleges violation of his right to
substantive due process by the individual members of the BPMC panel.
Although plaintiff made such accusations against the BPMC panel in his
submission in his Article 78 proceeding, the Appellate Division, as
acknowledged in its decision, lacked jurisdiction to review directly the
proceeding before the BPMC panel. See In the Matter of Hason, 295 A.D. at 822. The record also
does not reveal that the Appellate Division's review of the ARB decision
necessitated consideration of those questions. Accordingly, because the
claims contained in plaintiff's fourth cause of action may not have been
considered by the Appellate Division and are not "inextricably
intertwined" with any conclusion that the Appellate Division has made,
application of the Rooker Feldman doctrine does not deprive this Court
of jurisdiction to entertain the merits of this cause of action. See
DiBlasio, 344 F.3d at 296. It is, however, as described below, barred by
the statute of limitations.
C Failure to State a Claim
1. Statute of Limitations
Plaintiff's sole remaining claim, the fourth cause of action, is
asserted pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 and alleges
violation of his substantive due process rights. This cause of action is
subject to a three-year statute of limitations period in New York, See
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (the
applicable statute of limitations period is, for a Section 1983 claim,
"found in the general or residual [state] statute [of limitations] for
personal injury actions") (citing Owens v. Okure, 488 U.S. 235, 249-50,
109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Jaghory v. New York State Dep't of
Educ., 131 F.3d 326, 331 (2d Cir. 1997) (holding that a three-year
limitations period applies to claims arising under both 42 U.S.C. § 1983
and 42 U.S.C. § 1985); see also New York C.P.L.R. § 214(5) (three-year
statute of limitations period applicable to personal injury suits).
Because the BPMC decision was issued on November 9, 1999, the fourth
cause of action is deemed time-barred if it was filed in the Southern
District on or after November 10, 2002. Plaintiff claims that the initial complaint in this action "was filed
. . . in this Court in or about early October 2002," See Plaintiff's
Memorandum of Law in Opposition to Motion to Dismiss at 6. However, not
only does plaintiff not offer any support for that statement, but also
all the available facts belie that assertion. First, the initial
complaint itself was signed and dated "November 8, 2002." See Complaint
and Demand for Jury Trial at 6. The Court is unable to fathom how a
complaint dated in November could have been filed the month before the
date it was signed by plaintiff. Moreover, the Pro Se Office of the
Southern District of New York stamped the initial complaint as "received"
on November 14, 2002. That date is certainly consistent with plaintiff's
having mailed it from his home in Florida on or about November 8, 2002.
Therefore, this Court cannot credit plaintiff's unsubstantiated
allegation and instead deems November 14, 2002 as the date of the filing
of this action. See Chira v. Columbia University in New York City,
289 F. Supp.2d 477, 482 n.10 (S.D.N.Y. 2003) (holding that the date upon
which a pro se complaint is submitted to the Pro Se Office is "the
relevant date for the statute of limitations"). Accordingly, plaintiff's
fourth cause of action is time-barred and will be dismissed with
prejudice pursuant to Fed R. Civ, P. 12(b)(6). See Cantor Fitzgerald Inc.
v. Lutnick, 313 F.3d 704, 713 (2d Cir. 2002).
For the reasons set forth above, plaintiff's first, second, third and
fifth causes of actions are dismissed with prejudice for lack of subject
matter jurisdiction and plaintiff's fourth cause of action is dismissed with prejudice for being time-barred. Accordingly,
defendants' motion to dismiss the Amended Complaint is granted and the
Amended Complaint is dismissed in its entirety.