The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court is Defendants' motion for summary judgment. For the foregoing reasons, that motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff Rita Stein is the widow of Plaintiff Milton Stein, and appears on behalf of herself and in her capacity as the Executrix of Milton Stein's Estate. On or about May 15, 1990, Mr. Stein executed a health care proxy pursuant to New York Public Health Law § 2981, designating Mrs. Stein as his health care agent authorized to make health care decisions on his behalf should he become incapacitated. Pl. Local Rule 56.1 Statement ("Pl. Stmt.") ¶¶ 14-15; Pl. Opp. Br. at 4.
On or about October 2, 2005, Mr. Stein was admitted to North Shore University Hospital ("NSUH"). Pl. Opp. Br. at 4. After extensive testing, his doctor determined that he had metastatic prostate cancer. Id. NSUH released Mr. Stein on October 7, 2005. Defendants' Local Rule 56.1 Statement ("Def. Stmt.") ¶ 1. Throughout the next day, October 8, 2005, Mr. Stein became less and less responsive. Id. at ¶ 2. Mrs. Stein made no attempt to contact Mr. Stein's primary care physician at any time on October 8, 2005, while Mr. Stein's condition continued to worsen. Id. at ¶ 5. But around 10:47 that night, a 911 call was placed from the Stein residence. Id. at ¶ 6.
Within a few minutes, Defendant Police Officers Paul Barthelson, James Whittaker, and James D'Alto arrived at the scene. Id. at ¶¶ 7, 8. Around 10:58 p.m., Defendant Ambulance Medical Technician Diomedes Diaz arrived. Id. at ¶ 9. Mrs. Stein requested that Defendants take Mr. Stein to NSUH, the hospital he had just been released from, and the location of his doctors and medical records. Pl. Stmt. ¶¶ 13, 17. The Individual Defendants refused, and instead insisted on taking Mr. Stein to Winthrop University Hospital ("Winthrop"). Pl. Stmt. ¶ 18. Winthrop is approximately 3.44 miles away from the Stein residence, and a 9 minute ride by car. Def. Stmt. ¶ 14; Pl. Stmt. ¶ 13. NSUH is 6.72 miles away, but only a 10 minute ride by car. Def. Stmt. ¶ 15; Pl. Stmt. ¶ 13. Defendants contend that, because Winthrop was closer to the Stein residence, it was the closest "appropriate" medical facility. Def. Stmt. ¶ 11. Plaintiffs argue that the presence of Mr. Stein's doctors and medical records, when combined with the small difference in travel time, rendered NSUH the closest "appropriate" medical facility.
Mrs. Stein advised the Individual Defendants that she was Mr. Stein's health care agent, and thus was authorized to make medical decisions on his behalf given his incapacitation. Def. Stmt. ¶ 12. The Individual Defendants refused to honor Mrs. Stein's status as Mr. Stein's health care agent, even though Mrs. Stein showed them the duly executed proxy designating her as such. Pl. Stmt. ¶¶ 15, 19. During his deposition, Defendant Diaz testified that Nassau County instructed him not to honor health care proxies. Pl. Stmt. ¶ 20. Plaintiffs contend that health care proxies are always valid, regardless of the setting. Pl. Stmt. ¶ 12. Defendants contend that health care proxies are "not valid in a pre-hospital setting." Def. Stmt. ¶ 12. It is apparently uncontested that, if Mr. Stein had the capacity to express a hospital preference himself, the Defendants would have had to comply with that request unless "contraindicated by state, regional or system/service protocol or the assessment by a certified EMS provider shows that complying with [Mr. Stein's] request would be injurious or cause further harm to [him]." New York State, Department of Health, Bureau of Emergency Medical Services, Policy Statement No. 98-15 ("Policy Statement 98-15"). In such cases, the EMT must "fully document" the request, and the reasons for not complying with it. Id.
Without Mrs. Stein's consent and over her objection, Defendant Barthelson lifted Mrs. Stein off the floor and carried her out of the Steins' bedroom. Pl. Stmt. ¶ 21. Mrs. Stein concedes that she "intentionally attempted to obstruct the Defendants from taking Milton Stein out of the house." Pl. Opp. Br. at 20. But Mrs. Stein claims that she was entitled to do so, because Defendants were ignoring her instructions as Mr. Stein's health care agent.
Mr. Stein was then taken to Winthrop, where he stayed for five days before being transferred to NSUH. While at Winthrop, Mr. Stein was subjected to invasive tests and x-rays that were unnecessary, because NSUH had already performed them and had the results in their records. Amend. Compl. ¶ 32. During his time at Winthrop, Mr. Stein did not receive metastatic prostate cancer treatments. Amend. Compl. ¶ 90. These treatments resumed after Mr. Stein was transferred to NSUH. Amend. Compl. ¶ 91.
Plaintiffs' First Amended Complaint asserts 11 causes of action predicated on the events that took place on October 8, 2005. The first 4 causes of action seek relief predicated on Defendants' decision to remove Mr. Stein from his house and take him to Winthrop, asserting that this conduct violated Mr. Stein's rights under 42 U.S.C. § 1983 and the Fourth, Fifth and Fourteenth Amendments to the Constitution. Causes of action 5 through 8 seek relief predicated on Defendant Barthelson's decision to lift Mrs. Stein up and remove her from the Stein's bedroom, asserting that this conduct violated Mrs. Stein's rights under § 1983 and the Fourth and Fourteenth Amendments to the Constitution. The ninth cause of action seeks similar relief, predicated on a theory that Defendant Barthelson's conduct constituted an "assault" upon Mrs. Stein.*fn1 The tenth cause of action appears to seek relief deriving from Defendants failure to honor the health care proxy. And the eleventh cause of action alleges that Defendants were negligent in taking Mr. Stein to Winthrop instead of NSUH, because Winthrop's unfamiliarity with Mr. Stein's condition prevented Mr. Stein from receiving metastatic prostate cancer treatment for five days.
I. Standard of Review on Summary Judgment
"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).
"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.
"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. ...