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Anthony G. Dilworth and Patricia Dilworth v. Randy Goldberg

September 30, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiffs Anthony G. Dilworth ("Dilworth") and Patricia Dilworth ("Patricia") commenced this action on March 15, 2010, alleging various federal and state claims against New York Medical College ("NYMC"), Aramark Correctional Services LLC ("Aramark"), the Westchester County Department of Correction Superior Officers Association ("SOA"), the Westchester County Department of Correction Superior Officers Association Benefit Fund ("SOA-BF"), the Westchester County Correction Officers Benevolent Association ("COBA"), as well as Westchester County, the Westchester County Health Care Corporation ("WCHCC"), the Westchester Medical College ("WMC") (collectively, the "Institutional County Defendants"), and 55 of these three entities' employees (the "Individual County Defendants", and together with the Institutional County Defendants, the "County Defendants"). Plaintiffs amended their complaint twice, once on April 2, 2010, and once on September 17, 2010. Between October 2010 and February 2011, NYMC, COBA, the County Defendants, and Aramark all moved to dismiss the second amended complaint ("SAC").

The Court referred the motions to Magistrate Judge Gabriel W. Gorenstein for a report and recommendation in an order dated June 30, 2010. In his report, Dilworth v. Goldberg, No. 10 Civ. 2224 (RJH) (GWG), 2011 WL 3501869, at *34 (S.D.N.Y. July 28, 2011) (the "Report"), Judge Gorenstein concluded that the motions to dismiss of NYMC, Aramark and its unknown employees, and COBA should be granted as to all claims against them. As for the County Defendants, Judge Gorenstein recommended dismissal of all claims against Dr. Richard Maretzo, Jr. and Captain Keith Camera; of the 42 U.S.C. § 1983 claims against Sergeant Clyde Hodge and Captain Raymond Rhodes; of all § 1985 and § 1986 claims; and of all state tort claims.

Plaintiffs filed objections to three of Judge Gorenstein's conclusions. (See generally Plaintiffs' Amended Objections to the Report and Recommendation of Magistrate Judge Gabriel W. Gorenstein ("Pls.' Am. Obj.")). First, they contend that Judge Gorenstein erroneously dismissed their state tort claims against the County Defendants for failure to serve a notice of claim under N.Y. Gen. Mun. Law § 50-e. Second, plaintiffs argue that they sufficiently alleged a claim under Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978) against NYMC. And third, plaintiffs object to the dismissal of respondeat superior and loss of consortium claims against NYMC, arguing that Drs. Bailey-Wallace and Goldberg were sufficiently identified as employees of NYMC.

The County Defendants also filed objections to Judge Gorenstein's conclusions. (See generally County Defendants' Objections to Magistrate Judge Gabriel W. Gorenstein's Report & Recommendation Dated July 28, 2011 ("Defs.' Obj.")). They argue under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) that Judge Gorenstein erred in assuming the truth of numerous allegations against Warden Anthony Amicucci and Commissioner Joseph Spano, where these allegations were apparently offered by plaintiffs on speculation alone, i.e., "on belief." They further argue that Amicucci, Spano, and Captain James Soychak were not sufficiently involved in any constitutional violations to render them liable under 42 U.S.C. § 1983.


The factual background and relevant procedural history are set forth in the Report. The Court adopts the findings of fact as set forth in the Report and assumes familiarity with the facts as stated therein.


I.Standard of Review

A district court may designate a magistrate judge to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motions. See 28 U.S.C. § 636(b)(1). Within fourteen days of service of the recommendation, any party may file written objections to the magistrate judge's report. Id.

The court will generally adopt those portions of the Report to which no timely objection has been made, as long as there is no clear error on the face of the record. Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 365 (S.D.N.Y. 2007). However, "the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing 'the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies.'" Id. (quoting 366 Bandhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002)). The court may then accept, reject, or modify in whole or in part recommendations of the magistrate judge. Id. at 366. If, however, the objections are "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the court will review the report for clear error. Id. (quoting Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006)).

II.Objections to Dismissal of the State Tort Claims Against the County Defendants

In the Report, Judge Gorenstein recommended dismissal of the state tort claims against the County Defendants on the grounds that plaintiffs had failed to comply with the requirements of N.Y. General Municipal Law §§ 50-e and 50-i. (Report at *41-42.)

In federal court, state notice of claim statutes apply to state law claims. Felder v. Casey, 487 U.S. 131, 151 (1988); Parise v. N.Y.C. Dep't of Sanitation, 306 Fed.Appx. 695, 696 (2d. Cir. 2009). Under New York law, a notice of claim is a mandatory condition precedent to bringing a tort claim against a municipality. See N.Y. Gen. Mun. Law § 50--e (McKinney 2010); Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999); Fincher v. County of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997). A notice of claim must, inter alia, "be filed within ninety days of when the claim arises." § 50--e. Since plaintiffs' notice of claim was served on the county on December 31, 2009, more than ninety days after Dilworth's injury, and since a federal court "does not have jurisdiction to decide whether Plaintiffs may file late Notices of Claim," Bunim v. City of New York, No. 05 Civ. 1562 (KMK), 2006 WL 2056386, at *1 n.2 (S.D.N.Y. July 21, 2006),*fn1 the report concluded that the state tort claims against the County Defendants must be dismissed.

Plaintiffs challenge Judge Gorenstein's conclusion on three grounds: (A) Four months after Dilworth's accident, plaintiffs served a pro se notice of claim on Westchester County which, although untimely as to the accident, saves some of plaintiffs' state tort claims; (B) Plaintiffs should be permitted to pursue state tort claims against the Individual County Defendants for activities undertaken outside the scope of their employment; and (C) Drs. Bailey-Wallace and Goldberg are not exclusively municipal employees, and thus not subject to the notice of claim requirement.

A. The pro se Notice of Claim

When suing a municipality or municipal agency, New York law requires a plaintiff to plead in his complaint that: "(1) the plaintiff has served [a] notice of claim; (2) at least thirty days have elapsed since the notice was filed (and before the complaint was filed); and (3) in that time the defendant has neglected to or refused to adjust or to satisfy the claim." Hardy, 164 F.3d at 793. Plaintiffs plead that multiple notices of claim were served on the County. (SAC ¶ 18) ("notices of claim were served upon the municipal defendants"). Plaintiffs acknowledge in the complaint that Dilworth did not serve these notices within ninety days of his injury, but submit that a timely motion for leave to serve a late notice of claim was filed and served on the county. Id. Dilworth was subject to a physical examination at Westchester County's request on August 19, 2009, after receipt of the first notice of claim. (Id. ¶ 19); see N.Y. Gen. Mun. Law § 50-h ("Wherever a notice of claim is filed against a . . . county, . . . the . . . county . . . shall have the right to demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made.") Dilworth presented himself for a second examination on March 10, 2010, in connection with the second notice of claim, but the County chose not to proceed with the examination. (SAC ¶ 20.) Plaintiffs plead that "more than thirty days have elapsed since service of said notices," and that "no offer of settlement has been made." (Id.)

For the first time in the action, Plaintiffs have provided the court with a copy of a pro se notice of claim served on the county in May of 2009, and argue that this notice supports some of their state tort claims. This notice was not reviewed by Judge Gorenstein, as it was submitted only as part of plaintiffs' objections. District courts in this circuit have found it proper to "refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance." Allen v. Hurd, 09 Civ. 13882010 (GTS/GHL), 2010 WL 2682248, at *2 n.1 (N.D.N.Y. July 2, 2010). However, "the authority- and the responsibility-to make an informed, final determination" remains with the District Judge, U.S. v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994) (quoting Mathews v. Weber, 423 U.S. 261, 271 (1976)), who retains the power to review any portion of a report, ...

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