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Marilyn Bloch v. Dr. Joyce Gerdis

November 30, 2011

MARILYN BLOCH, PLAINTIFF,
v.
DR. JOYCE GERDIS, M.D., DEFENDANT.



The opinion of the court was delivered by: P. Kevin Castel, District Judge

MEMORANDUM AND ORDER

Plaintiff Marilyn Bloch, proceeding pro se, brings this action against defendant Dr. Joyce Gerdis-Karp, invoking the Court's subject matter jurisdiction by reason of diversity of citizenship, 28 U.S.C. § 1332. Plaintiff is a citizen of Florida. Defendant's offices are located in New York. Reading the Complaint generously, it asserts claims for breach of contract, medical malpractice, and intentional infliction of emotional distress. The defendant now moves for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons discussed below, defendant's motion for summary judgment is granted.

BACKGROUND

For approximately four years, Bloch has been trying to join a vocational rehabilitation program. In September 2007, the Florida Department of Education ("Florida DOE"), Division of Vocational Rehabilitation, referred Bloch for vocational evaluation, situational assessment and psychiatric evaluation to determine whether Bloch suffered from schizophrenia and whether she was an acceptable candidate for Division of Rehabilitation Services. (Pl. 56.1 Ex. B.) Dr. Saltz conducted Bloch's psychiatric evaluation and recommended medication conditioned on the use of medication management services for which Bloch refused to apply. (Pl. 56.1 Ex. B.) On January 28, 2008 the Florida DOE concluded that Bloch was not eligible for vocational rehabilitation services because her disability was too severe for those services to "result in an employment outcome." (Pl. 56.1 Ex. C.)

In 2009, Bloch obtained Gerdis's name through a physician referral service and contacted her with the purpose of obtaining a letter stating that Bloch was capable of returning to work and should be eligible for vocational rehabilitation. (Gerdis Aff. ¶ 3.) Gerdis explained that she could not promise to provide such a letter but would conduct an independent evaluation of Bloch's ability. (Id.) Gerdis conducted the evaluation on July 15, 2009, during which Bloch repeated her request for a letter stating that she was capable of employment and informed Gerdis that she intended to use the letter in a medical malpractice action against Saltz. (Id. . ¶ 4.) Gerdis reiterated that she could not promise to provide such a letter. (Id.)

After completing the evaluation, Gerdis concluded that Bloch was unable to return to work because of a urinary condition that caused incontinence. (Id. ¶ 5-6.) This condition was also the reason Bloch was fired from her last employment position in 2007. (Id. ¶ 5.) Gerdis advised Bloch of her findings at the conclusion of the evaluation and provided her with a bill that Bloch paid by check at a later date. (Id. ¶ 6.) Believing that Bloch did not want a report of her evaluation, Gerdis did not prepare one until the New York State Health Department advised her that Bloch wanted it. (Id. ¶ 7-8.) Gerdis prepared a report dated September 7, 2009 stating that Bloch's urinary condition prevented her from working and being eligible for vocational rehabilitation services. (Id. ¶ 8.) In a January 6, 2010 addendum to the report, which was written upon Bloch's request that Gerdis address any psychological testing for intellectual functioning, Gerdis recommended that Bloch contact local mental health practitioners about the required clinical and standardized tests. (Id. ¶ 9.) In a second addendum dated July 13, 2010, which was also written at Bloch's request, Gerdis concluded that Bloch does not suffer from schizoaffective disorder. (Id. Ex. iii.)

Bloch seeks $4 million in damages for lost wages, $1.5 million in punitive damages and damages for emotional distress, and $4 million for damages caused by medical malpractice. Gerdis moves for summary judgment on all claims. Bloch conducted no fact or expert discovery during the discovery period.

DISCUSSION

I. Summary Judgment Standard

Summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56, Fed. R. Civ. P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, sufficient to demonstrate that he or she is entitled to relief as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).

A fact is material if it "might affect the outcome of the suit under the governing law," meaning that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, granting summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party. Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011); accordMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585--88 (1986). In reviewing a motion for summary judgment, the court may scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c)(3), Fed. R. Civ. P. In the absence of any disputed material fact, summary judgment is appropriate. Rule 56(a), Fed. R. Civ. P.

"A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory or based on speculation." Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (internal citation omitted); see alsoAnderson, 477 U.S. at 249--50 (summary judgment may be granted if the opposing evidence is "merely colorable" or "not significantly probative") (citations omitted). An opposing party's facts "must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions." Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 n. 14 (2d Cir. 1981) (quotation marks omitted).

Local Civil Rule 56.1 of this District requires a summary judgment movant to submit a statement with numbered paragraphs setting forth "the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civil Rule 56.1(c). "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." Local Civil Rule 56.1(d). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Rule 56(c), Fed. R. Civ. P. ...


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