The opinion of the court was delivered by: Mark D. Fox, United States Magistrate Judge
In December 2006, Katrina Van Cortlandt ("Plaintiff") commenced this action by filing a summons with notice in New York State Supreme Court, Westchester County. Pursuant to 28 U.S.C. § 1441(a), the action was removed to this Court in March 2007.
The complaint names Westchester County, Westchester Medical Center, Dr. Neil Zolkind, Dr. Reba Bindra, Dr. Mahpare Khan, Dr. Mitchel Nobler and Kevin O'Connell as defendants,*fn1 and asserts claims pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's Fourth, Fifth and Sixth Amendment rights under the United States Constitution, as well as claims for violation of Plaintiff's rights under Sections 1, 6 and 12 of the New York State Constitution Bill of Rights, and New York Mental Hygiene Law.
Defendants Dr. Nobler and Dr. Zolkind answered the complaint, and Defendants Westchester County, Westchester County Health Care Corporation (named in the proposed amended complaint in place of Westchester Medical Center), Dr. Bindra, Dr. Khan and Kevin O'Connell (together, the "Moving Defendants") moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
In response, Plaintiff cross-moved for leave to file a late notice of claim and to amend the complaint. Plaintiff's motion to amend the complaint seeks, inter alia, to add: (1) another defendant, Ken Ross, an employee of Westchester County; (2) state law claims sounding in fraud and malpractice; and (3) allegations regarding Westchester County's municipal policy concerning the seizure and institutional commission of elderly citizens.
The parties have consented to this Court's determination of these motions pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the motion to dismiss the complaint is granted in part and denied in part, Plaintiff's cross-motion for leave to file a late notice of claim is denied, and Plaintiff's cross-motion to amend the complaint is granted in part and denied in part.
The following facts are alleged in the original complaint or the proposed amended complaint where noted. Plaintiff, a seventy-eight year old female, became ill in October 2006 and was taken from her home in Cortlandt Manor, New York by ambulance to the Hudson Valley Medical Center for treatment. Plaintiff contracted Erlichiosis, a tick borne disease, and suffered from high fever and dehydration. She was kept at the Hudson Valley Medical Center for one week and then released to the Cortlandt Health Care Center for rehabilitation. While Plaintiff completed her physical therapy and treatment for Erlichiosis in late November 2006, the Cortlandt Health Care Center declined to release her due to the condition of her home, which was in disarray due to both Plaintiff's own physical injuries and vandalism that occurred when her home was inadvertently left unlocked while she was away. Compl. ¶¶ 10-16.
On December 1, 2006, Plaintiff was given permission to leave the Cortlandt Health Care Center to run errands. When Plaintiff returned home, she decided that she needed to stay to arrange for her home to be cleaned, and advised the Cortlandt Health Care Center that she would not be returning. Id. ¶¶ 19-21.
On December 2, Plaintiff scheduled various professional cleaners to clean her home within the next week. The Cortlandt Health Care Center also contacted Westchester County's Adult Protective Services ("APS") at or around this time, which in turn contacted the New York State Police and ordered that Plaintiff be picked up and transported to the Westchester Medical Center (or "Hospital") for evaluation. Id. ¶¶ 22-24.
On the evening of Sunday, December 3, a Westchester County representative (identified in the proposed amended complaint as Defendant Ken Ross (Aff. of Anthony Giordano, May 11, 2007 ("Giordano Aff."), Ex. B, PAC ¶ 27) and members of the New York State Police went to Plaintiff's home. Defendant Ross told Plaintiff that the State Police came to take her to the Westchester Medical Center in Valhalla, New York to meet with an Adult Protective Services representative. Plaintiff declined, and offered instead to drive herself to the Hospital on Monday or Tuesday after meeting with the cleaners scheduled to clean her home. Defendant Ross told Plaintiff, however, that she would be taken to the Hospital by force if she refused to leave her home. Under this threat of forced removal, Plaintiff entered the police vehicle for the trip to Valhalla.*fn2 Id. ¶¶ 25-30.
Fifteen minutes after her arrival at the Westchester Medical Center, Plaintiff met with a social worker who informed her that he would recommend that she be released, and file a "72 hour notice" on her behalf. Nevertheless, Plaintiff was involuntarily admitted and taken to the psychiatric unit.*fn3 Id. ¶¶ 33-38.
On December 4, Plaintiff began asking when she would be released and was told she first had to speak to "members of [her] team." Plaintiff was prohibited from directly contacting her attorney, Anthony Giordano, but was eventually able to convey a message to him through a friend to request his appearance for a meeting with her doctors and APS scheduled for December 6. Id. ¶¶ 40-44.
On December 6, Plaintiff's attorney appeared at the Westchester Medical Center's psychiatric unit where Plaintiff was being held. There, an intern informed Mr. Giordano that he had evaluated Plaintiff and found her mentally competent, but his superiors intended to keep her detained for reasons he could not share. Shortly before the scheduled meeting, Plaintiff's attorney met with Dr. Bindra, who advised that "it was the facility's opinion that plaintiff [should] remain because a 'program' had not yet been devised by her team." Id. ¶¶ 45-49.
At Dr. Bindra's suggestion, Mr. Giordano went to meet with Dr. Solkind to discuss Plaintiff's case in Dr. Solkind's office located down the hall outside the secure ward where Plaintiff was being held. At this time, Plaintiff was taken into a room where the scheduled meeting began without her attorney present. This meeting was attended by Dr. Nobler, Dr. Bindra and Dr. Solkind, among others from APS, and Plaintiff was asked to sign documents which she refused to do without her attorney present. Id. ¶¶ 50-56.
Plaintiff's attorney never met with Dr. Solkind. Eventually, he was able to enter the meeting room, but upon his entrance, Dr. Bindra asked to speak with him outside the room. When Mr. Giordano declined and asked why the meeting began without him, Dr. Bindra told him that his presence was upsetting Plaintiff, and ordered a security guard to physically escort him from the secure ward. Id. ¶¶ 57-62.
After the meeting ended, Plaintiff grabbed Mr. Giordano's arm and told him she wanted to leave. When Mr. Giordano attempted to escort her to the elevator, security guards blocked their exit. At this time, Mr. Giordano spoke to Defendant O'Connell, who agreed that if Mr. Giordano and Plaintiff returned to the secure ward, Mr. Giordano could then review the relevant documents to ensure that Plaintiff's stay at the Hospital was legal. However, when they returned to the secure facility, Defendant O'Connell informed Mr. Giordano that Plaintiff could not go home unless she signed a form which provided that the Hospital was entitled to 72 hours written notice before Plaintiff could be released. Defendant O'Connell also informed Mr. Giordano that he could be arrested if he tried to remove Plaintiff from the facility again. Under these circumstances, Plaintiff signed the form and remained against her will with the expectation that she would be released. Id. ¶¶ 63-72.
On December 8, Plaintiff learned that she would not be released and contacted her attorney to initiate a lawsuit. Mr. Giordano filed a summons with notice that same day in New York State Supreme Court, Westchester County, but was refused entrance to the Hospital to serve the defendant doctors. When visiting hours commenced, Mr. Giordano was refused entrance to visit with his client and informed that he would be arrested by Westchester County police if he did not leave the premises. When the police arrived, Mr. Giordano was, in fact, forced to leave under threat of arrest. Plaintiff remained at the Hospital until December 15, at which time Mr. Giordano negotiated her release with counsel for the Westchester Medical Center.*fn4 Id. ¶¶ 73-83.
Based on these allegations, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for violation of her Fourth, Fifth and Sixth Amendment rights under the United States Constitution, and state law claims for violation of her rights under the New York State Constitution and New York Mental Hygiene Law, as well as for medical malpractice and fraud.
Now before me are the Moving Defendants' motion to dismiss and Plaintiff's cross-motion for leave to file a late notice of claim and to amend the complaint.