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Michael Baum and Teri Baum Markowitz, As Administrators of the Estate of Etta v. Northern Dutchess Hospital and Wingate of Ulster

January 24, 2011


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


Currently before this Court is Defendant Wingate of Ulster, Inc.'s (hereinafter "Wingate") Motion to Dismiss/Summary Judgment, pursuant to FED. R. CIV. P. 12(c) and 56, seeking to dismiss Baum's Fifth Cause of Action, which sounds in 42 U.S.C. § 1983. Dkt. No. 14, Not. of Mot., dated Oct. 1, 2010.*fn2 Baum opposes the Motion, dkt. nos. 19 & 20,*fn3 which Wingate replies thereto, dkt. no. 22.*fn4 For the reasons stated below, Wingate's Motion to Dismiss/Summary Judgment is granted.


This action was commenced in New York State Supreme Court, County of Ulster on March 23, 2010. Dkt. No. 1. On April 9, 2010, Wingate removed this lawsuit from Ulster County Supreme Court to the Northern District of New York, pursuant to 28 U.S.C. §§ 1441 and 1446, insomuch as Baum's Fifth Cause of Action claims a violation of Sherry Baum's civil rights, pursuant to 42 U.S.C. § 1983, thus providing a basis for federal question jurisdiction. Id. The Court, as required by law, shall accept all allegations in the Complaint as true for the purpose of this Motion. See infra PartII.A.

On or about October 22, 2007, through and inclusive of November 2, 2007, Decedent Sherry Baum (hereinafter "Decedent") was admitted to Northern Dutchess Hospital (hereinafter referred to as "Northern Dutchess") for hip surgery and other medical complaints. Thereafter, on November 2 to December 5, 2007, the Decedent was admitted to Wingate for a right hip fracture and rehabilitation. During Decedent's convalescence at Wingate, she developed bedsores and other injuries. Baum alleges that Wingate's negligence and gross negligence, along with Northern Dutchess's gross negligence, contributed to the Decedent's injuries and eventual death. See generally Dkt. No. 1, Compl. (Causes of Action 1-4). The Fifth Cause of Action, which is the subject of this Motion to Dismiss, is asserted solely against Wingate.*fn5

Wingate is a residential nursing home facility as defined in 42 U.S.C. § 1396r and New York Public Health Law § 2801(3) and is subject to federal rules and regulations.*fn6 Pursuant to both federal and state laws, Wingate is supposed to provide its patients with "medically related social services to attain the highest practicable physical, mental and psychosocial well-being." Compl. at ¶¶ 58-60. The Complaint continues that because § 1396r confers certain rights upon residents of nursing homes, including the Decedent, Wingate's failure to provide such medically related social services, particularly with regard to treating her bedsores, violated her civil rights under 42 U.S.C. § 1983.


Wingate's Motion to Dismiss is pursuant to both Rule 12(c), a motion on the pleadings, and 56, summary judgment. Dkt. No. 14. With respect to the Rule 56 aspect of the Motion to Dismiss, Wingate submits a Statement of Material Facts stating that Wingate is a privately held domestic corporation, there are no allegations within the Complaint that hold it as a state actor, and there are no allegations that it was acting under the color of state law for purposes of 42 U.S.C. § 1983. Dkt. No. 14- 4. Baum controverts Wingate's Statement. Dkt. No. 20.

A. Motion to Dismiss pursuant to FED.R.CIV.P. 12(c)

"Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). In applying Rule 12(c), a court must utilize the same standard as that applicable to a motion under Rule 12(b)(6). The Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). On a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true all factual allegations in the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (citation omitted).

On a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation marks omitted)); Cruz v. Beto, 405 U.S. 319, 322 (1972). Accepting the facts as true is not applicable to legal conclusions: "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. at 1949. Stated another way, "a pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action' are not entitled to the "assumption of truth." Id. at 1949 & 1951 (quoting, in part, Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum

Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (emphasis added)). On a motion to dismiss, the trial court's function "is merely to assess the legal plausibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" factual allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint has plausibility, that is, when it "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). The plausibility standard requires more than "sheer possibility that a defendant has acted unlawfully." Id. In essence, the complaint must "[be] nudged . . . across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. at 570 (quoted in Ashcroft v. Iqbal, 129 S.Ct. at 1951).*fn7 This is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (cited in Ashcroft v. Iqbal, 129 S.Ct. at 1950). In spite of the deference the court is bound to give to the plaintiff's factual allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged, or that the defendants have violated the .

. . laws in ways that have not been alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

B. Summary Judgment Standard

Further, under Rule 12(c), a court may consider, "in its discretion and upon notice to all parties, materials outside the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d at 642 (citation omitted). However, since the Notice of Motion filed in this case explicitly informed Baum that Wingate was moving for summary judgment, the Court does not have to provide further notice. McGann v. United States Dep't of Justice, 100 F.3d 943 (2d Cir. 1996). To the extent that a defendant's motion for summary judgment under FED. R. CIV. P. 56 is based entirely on a plaintiff's complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6). As a result, "[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary

judgment." Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) (citations omitted). Yet, in order to determine a legal question, "summary judgment procedure[s] may be properly invoked." Id. (citation omitted). It is also within a court's discretion to convert a motion filed under Rule 12(b) and (c) into a motion seeking summary judgment when matters outside the pleadings have been presented and accepted by the court. Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566 (2d Cir. 2005); Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d at 273 (finding that summary judgment may be sought at any time after the pleadings have been served). Here, Wingate has served its Answer, the parties have filed Statements of Material Facts, albeit brief, and Affidavits have been presented.

Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate 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." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

To defeat a motion for summary judgment, the non-movant must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).

"[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).


A. Parties' Basic ...

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