The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Linda Edlinger commenced the instant action claiming that she sustained injuries as a result of medical care she received from Defendants. Presently before the Court is: (1) Defendant Jalal Mahdavian's motion for summary judgment; (2) Plaintiff's cross-motion for leave to amend her complaint to add new parties; and (3) Jamal Mahdavian's motion to intervene for the limited purpose of opposing Plaintiff's cross-motion to add him is a party.
On June 12, 2009, Plaintiff filed a Complaint against Dr. John McAndrew, the Mid-Hudson Family Health Institute, and the United States of America. The Complaint alleges that, on July 3, 2007, Defendants negligently performed an exploratory laparotomy and right oopherectomy. On June 29, 2009, Plaintiff filed an Amended Complaint. The Amended Complaint did not name Jalal Mahdavian, Jamal Mahdavian, or Mahdavian and Mahdavian, LLP as Defendants.
In November 2009, the only parties to the action (Plaintiff and the United States)*fn1 entered into a stipulation whereby Plaintiff was permitted to file a supplemental summons and amended complaint joining Jalal Mahdavian and The Kingston Hospital as Defendants. On December 7, 2009, Plaintiff filed a Second Amended Complaint adding Defendants Jalal Mahdavian and Kingston Hospital. In the Second Amended Complaint, Plaintiff alleges that "[t]he defendant, Jalal Mahdavian is also know [sic] as Jamal Mahdavian. . . ." Second Am. Compl. at ¶ 8. As is pertinent to Jalal Mahdavian, the Complaint further alleges that he was an employee of Kingston Hospital. In December 2009, a copy of the Second Amended Complaint was served upon Jalal Mahdavian by leaving a copy with a person at his actual place of business (40 Hurley Ave., Suite #5, Kingston, NY), and also mailing a copy to his business address.
Presently before the Court is: (1) Defendant Jalal Mahdavian's motion for summary judgment; (2) Plaintiff's cross-motion for leave to file an amended complaint; and (3) Jamal Mahdavian's motion to intervene for purposes of opposing Plaintiff's cross-motion.
Rule 56 of the Federal Rules of Civil Procedures governs motions for summary judgment. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in her favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motion.
a. Motion for Summary Judgment
Defendant Jalal Mahdavian seeks dismissal of the Complaint against him on the ground that he never provided any medical care or treatment to Plaintiff and he has never been known as Jamal Mahdavian. In support of his motion, Jalal Mahdavian submits an affidavit stating that he is not Jamal Mahdavian, he has never been known as Jamal Mahdavian, and he "never had any contact with, nor provided any care or treatment to, the plaintiff, Linda Edlinger."
Plaintiff contends that summary judgment is premature because she "has been unable to depose Dr. John McAndrew, Dr. Jalal Mahdavian, Dr. Jamal Mahdavian and someone from the defendant, The Kingston Hospital who would have knowledge regarding Jamal Mahdavian's relationship with The Kingston Hospital." Pl.'s Mem. of Law at 16. The law in this Circuit is clear that "[a] reference to Rule 56(f) and to the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56(f) affidavit . . . and the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp, 769 F.2d 919, 925 (2d Cir.1985); John Hancock Property & Casualty Ins. Co. v. Universale Reinsurance Co., 147 F.R.D. 40, 47 n. 15 (S.D.N.Y. 1993); and Cooperative Centrale Raiffeisen-Boerenleen Bank B.A. v. Northwestern Nat'l Ins. Co., 778 F. Supp. 1274, 1280 n. 9 (S.D.N.Y. 1991)). Here, Plaintiff neither references Rule 56(f) nor supplies the requisite affidavit stating: (1) what facts are sought and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what effort the affiant has made to obtain those facts; and (4) why those efforts were unsuccessful. Burlington Coat Factory Warehouse Corp., 769 F.2d at 926. Further, Jamal Mahdavian's relationship with Kingston Hospital is irrelevant to Jalal Mahdavian's liability. Accordingly, the Court rejects Plaintiff's claim that summary judgment is premature. The Court will, therefore, turn to the substance of the motion.
The medical records submitted by Plaintiff establish that Jamal Mahdavian (and not Jalal Mahdavian) assisted in the surgery. Plaintiff contends, however, that summary judgment is not warranted because Jalal Mahdavian is a partner with Jamal Mahdavian ...