MEMORANDUM-DECISION AND ORDER
Plaintiffs filed their Complaint in this matter on April 16, 2002, asserting claims of medical malpractice and breach of Defendants' statutory duty to report child abuse under New York's mandatory reporter system. Compl. (Dkt. No. 1).*fn1 On May 16, 2007, this Court granted Defendants' Motion for summary judgment. Order (Dkt. No. 151). On December 23, 2008, the Second Circuit Court of Appeals issued a Mandate affirming the dismissal of Plaintiffs' claims regarding Defendants' statutory duty to report, but reversing as to Plaintiffs' medical malpractice claims. Mandate (Dkt. No. 165).
Presently before the Court are Motions brought by all Cross-Defendants, seeking summary judgment as to the Cross-Claims asserted against them by Defendants. Also pending are Cross-Motions for costs and attorney's fees brought by Cross-Defendants Julie Ferguson, Individually; the County of Essex, New York; Essex County Mental Health; Essex County Department of Social Services; and Essex County Child Protective Services (collectively, "the County Cross-Defendants") as well as Lake Placid Central School District; Randy Quayle, individually; and Robert Schiller. For the reasons discussed below, the Motions for summary judgment brought by all Cross-Defendants are granted. The Motions for costs and attorney's fees are denied.
For purposes of clarity, the Court will first provide an overview of Plaintiffs' claims against Defendants. The Court will then provide details regarding the Cross-Defendants' involvement in this matter in the next section.
On August 15, 2000, Catherine Page ("Ms. Page"), the mother of Plaintiffs Brittany and Melissa ("Plaintiffs" or "Brittany" and "Melissa") (at the time, ages nine (9) and seven (7), respectively)read an excerpt of Brittany's diary, in which Brittany wrote that she was "sad all the time because I've been touched in places I don't want to be touched." Compl. ¶ 31. Brittany then told her mother that her half-brother Anthony (age 14)had touched her genitals, over her clothes, on more than one occasion when he had first moved into the family home, a year prior. Id.; Deposition of Catherine Page ("Page Dep.") at 60-61 (Dkt. No. 81, Attachs. 1-5, Ex. A).
Ms. Page then confronted Anthony, who claimed that he did not remember touching Brittany inappropriately, though if he did, it was accidental. Page Dep. at 61-62. Ms. Page thought that it was possible that Anthony was telling the truth. Id. at 62. However, because Ms. Page "wasn't going to sit and let it, you know, happen again without trying to do something" in case the touching was not accidental, she called the New York state hotline for reporting of child abuse or maltreatment ("the Hotline"). Id. at 65. The Hotline staff told Ms. Page that they would not even take her name to register a report, because the situation was not a matter that they could handle. Id. at 66.
Ms. Page called Patricia Monroe, M.D. ("Dr. Monroe"), a pediatrician at Adirondack Internal Medicine and Pediatrics, P.C., who had treated Plaintiffs, as well as Anthony, in the past. Page Dep. at 68-69; Medical Records (Dkt. No. 81, Attach. 10, Ex. C1). Ms. Page told Dr. Monroe what Brittany had alleged and Anthony's response. Page Dep. at 69. Ms. Page also told Dr. Monroe that Brittany would be staying at her aunt's house for the next week. See Deposition of Patricia Monroe, M.D. ("Monroe Dep.") at 53-54 (Dkt. No. 81, Attach. 8, Ex. B). Dr. Monroe advised Ms. Page not to leave Brittany alone with Anthony. Page Dep. at 69-70. Dr. Monroe also asked Ms. Page to bring Brittany in if Brittany would be willing to talk to Dr. Monroe. Id. at 72. Ms. Page did not do so because Brittany did not want to go. Id. at 72-74.
On or about January 31, 2001, after Brittany reacted angrily to Anthony's suggestion that he accompany her down the street on an errand, Ms. Page "knew that something had happened" and talked to Plaintiffs as well as her other daughters living in the house. Page Dep. at 76-79. The next day, Page called the Hotline, and was again told that there was nothing they could do. Id. at 79.
Ms. Page again questioned Anthony, but he denied any inappropriate contact with his sisters. Id. at 79-80. Ms. Page called numerous agencies, and also called Dr. Monroe, who asked Ms. Page to bring Plaintiffs in for an examination. Id. at 80-82. The state police had also contacted Dr. Monroe and asked her to evaluate Brittany for suspected sexual abuse. Monroe Dep. at 99.
Ms. Page brought Plaintiffs to Dr. Monroe's office and told Dr. Monroe that Plaintiffs had just disclosed additional and more severe instances of sexual abuse against them, committed by Anthony. Medical Records at 11. Dr. Monroe confirmed the stories with Plaintiffs and physically examined them. Id. at 9-11. At that time, Ms. Page told Dr. Monroe that she had begun working nights and leaving the children with a 19-year old babysitter. Id. at 11.
Ms. Page brought Anthony to stay at his father's home within two or three days after Ms. Page confronted Anthony on or about January 31, 2001. Page Dep. at 85, 88. Anthony later admitted having inappropriate contact with Plaintiffs on numerous occasions. See generally Deposition of Anthony Mitrone (Dkt. No. 109, Attach. 2).
Per its Mandate dated December 23, 2008, the Second Circuit affirmed the dismissal of Plaintiffs' claims that Defendants owed a statutory duty to report Ms. Page to the Hotline for allowing the abuse of her children. The Second Circuit noted that "at the time of the initial reports of abuse [in August 2000], Dr. Monroe had no reason to believe that Catherine Page was neglecting her duty to protect her daughters from abuse." Mandate at 4.
The Second Circuit reversed this Court's grant of summary judgment for the Defendants as to Plaintiffs' claims of medical malpractice, noting that Page offered evidence that created at least an inference that had Dr. Monroe herself contacted the Child Protective Services or law enforcement authorities, those authorities would have intervened to stop Anthony's abuse of his half-sisters at some point before February 2001. Accordingly, Page has demonstrated a genuine issue of material fact with respect to whether Dr. Monroe's alleged deviations from the standard of care were the proximate cause of the girls' injuries . . . .
Following the Second Circuit's Mandate, all Cross-Defendants have renewed their earlier Motions for summary judgment/ judgment as a matter of law as to Defendants' Cross-Claims.
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings;" bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. FED. R. CIV. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony." Brown, 257 F.3d at 251 (citation omitted).
"Under New York law, '[t]he right to indemnification may arise out of an express agreement of indemnification, or it may be implied by law in favor of one who is held liable solely by imputation of law because of his relation to the actual wrongdoer.'" In re Del-Val Financial Corp. Securities Litigation, 868 F. Supp. 547, 553 (S.D.N.Y. 1994) (quoting Jordan v. Madison Leasing Corp., 596 F. Supp. 707, 709 (S.D.N.Y. 1984)). "The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is 'a separate duty owed the indemnitee by the indemnitor.'" Raquet v. Braun, 90 N.Y.2d 177, 183 (1997) (quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 (1990)).
In their Answer, Defendants asserted Cross-Claims against all Cross-Defendants for indemnity as well as contribution. Answer (Dkt. No. 15). However, it appears that Defendants have abandoned their indemnity claims, as Defendants' Responses to the pending Cross-Motions do not address the arguments made by Cross-Defendants regarding indemnity. See, e.g., Stokes v. City of New York, 2007 WL 1300983, *14 (E.D.N.Y. May 3, 2007) (deeming claim abandoned where non-movant's opposition papers did not address movant's arguments for summary judgment as to that claim); Bellegar de Dussuau v. Blockbuster, Inc., 2006 WL 465374, *7 (S.D.N.Y. Feb. 28, 2006) (same). Even assuming that Defendants did not abandon their indemnity claims, the Court ...