Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Viera v. City of New York

United States District Court, S.D. New York

March 15, 2017

JOSIY VIERA and JAMES GOSSELIN, Plaintiffs,
v.
THE CITY OF NEW YORK and RICHMOND UNIVERSITY MEDICAL CENTER, Defendants.

          ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         On July 5, 2016, Plaintiff James Gosselin filed a motion to voluntarily dismiss his claims against the City of New York (the "City") and Richmond University Medical Center with prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. (Dkt. No. 63)[1]Defendants do not object to Gosselin's withdrawal of his claims, but they seek various conditions on the dismissal, including Plaintiff Josiy Viera's stipulation to a number of facts; the exclusion of certain testimony from Plaintiffs' expert that may have been influenced by Gosselin; Gosselin's response to two outstanding requests to admit; and an award of attorney's fees. (Dkt. Nos. 55, 66, 67)

         On June 24, 2016, this Court referred the parties' dispute to Magistrate Judge Henry Pitman for a Report and Recommendation ("R & R"). (Dkt. Nos. 60, 105) On January 13, 2017, Judge Pitman issued an R & R recommending that Gosselin's claims be dismissed with prejudice, subject to certain conditions. (Dkt. No. 106) No objections have been filed to the R & R. For the reasons stated below, this Court adopts the R & R in its entirety.

         BACKGROUND

         Plaintiff Josiy Viera is deaf, and she communicates primarily through American Sign Language ("ASL"). (Cmplt. (Dkf No. 1) ¶ 1) Plaintiff James Gosselin is Viera's fiance and resides with her and their eight children. Gosselin has normal hearing. (Id.) On July 13, 2015, Viera and Gosselin filed a complaint alleging the following facts:

         On or about December 1, 2014, Gosselin slipped and fell while holding the couple's infant son, A.G., injuring both himself and A.G. (Id. ¶ 2) Gosselin, Viera, and A.G. went to Richmond University Medical Center ("RUMC") for treatment. RUMC did not provide an ASL interpreter for Viera, and ignored or denied Viera's requests for ASL accommodation on an ongoing basis during A.G.'s medical treatment. (Id.) RUMC diagnosed A.G. with a broken leg and referred him to New York-Presbyterian Hospital for further treatment. (Id ¶ 37)

         After this incident, New York City Administration for Children's Services ("ACS") personnel visited Viera and Gosselin's home. (Id. ¶ 3) Except on one occasion, ACS employees never brought an ASL interpreter, despite Viera and Gosselin's requests to do so. (Id.)

         In this action, Plaintiffs allege that RUMC and ACS's failure to provide an ASL interpreter violates the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.; and the New York City Human Rights Law, NY. Admin. Code §§8-101 et seq. (ML ¶¶ 58-114)

         On February 29, 2016, Defendants deposed Gosselin. Gosselin testified that he served in the United States Army for ten years; that he was assigned to Echo Company of the 75th U.S. Army Rangers Special Forces unit headquartered in Fort Benning, Georgia; that he served three tours of duty in Iraq, two tours of duty in Afghanistan, and one tour of duty in Egypt; that he served as a combat medic and backup scout sniper; that he received a Silver Star for "bravery and heroism" in Fallujah, Iraq, in connection with saving another soldier's life; that he received the Purple Heart for wounds he had sustained while on active duty; that he was shot 14 times in both legs while on active duty; that his leg bones were fractured as a result of his wounds, and that two metal rods were inserted in his legs along with four screws and two pins; and that he was in a wheelchair for a year as a result of his injuries. (See R & R (Dkt. No. 106) at 3-5; Gosselin Dep. at 11-14, 20-23)

         Gosselin's account of valor and honor in service of his country appears to be false. The National Personnel Records Center reports that Gosselin's military service records show that he was never on active duty, other than for training. (See id. at 5; May 13, 2016 RUMC Ltr. (Dkt. No. 50) at 7) X-rays taken in connection with Gosselin's December 1, 2014 visit to RUMC's emergency room show no evidence of the injuries or medical treatment he described. (See R & R (Dkt. No. 106) at 5; May 13, 2016 RUMC Ltr. (Dkt. No. 50) at 2)

         On May 9, 2016, Defendants sent Gosselin two requests to admit concerning his military service records. (See May 13, 2016 RUMC Ltr. (Dkt. No. 50) at 2, 5) This Court directed Gosselin to respond to the Requests for Admissions by June 8, 2016. (Sec Order (Dkt. No. 52) at 1)

         In a June 8, 2016 letter, Plaintiffs counsel notified this Court that Gosselin intended to voluntarily withdraw his claims in this lawsuit with prejudice. (See June 8, 2016 Pltf, Ltr. (Dkt. No. 54) at 1) On July 5, 2016, Gosselin moved to withdraw his claims, with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(2).[2] (See Dkt. No. 63) In connection with Gosselin's motion, Viera agreed that she would not call Gosselin as a witness or rely on Gosselin's testimony, either at trial or in connection with any motion. (See R & R (Dkt. No. 106) at 5; June 14, 2016 Pltf. Ltr. (Dkt. No. 59) at 1) Defendants do not object to Gosselin's withdrawal of his claims with prejudice or to Viera's agreement not to use Gosselin's testimony. (See R & R (Dkt. No. 106) at 5-6; RUMC Br. (Dkt. No. 66) at 1) However, Defendants argue that the dismissal of Gosselin's claims should be subject to certain conditions. (See RUMC Br. (Dkt. No. 66); Lively Deck (Dkt. No. 67) ¶¶ 4-8; July 21, 2016 City Ltr. (Dkt. No. 71) at 1-6; July 15, 2016 Tr. (Dkt. No. 113) at 4) Plaintiffs have accepted most of Defendants' conditions, but several remain in dispute.

         First, Defendants seek stipulations as to certain matters addressed in Gosselin's deposition and 50-h hearing testimony.[3] Second, Defendants seek to exclude or re-depose Plaintiffs' expert, Dr. Judy Shepard-Kegl, because portions of her report and testimony may have been influenced by information Gosselin provided to her. Third, Defendants seek to compel Gosselin to respond to two requests to admit, notwithstanding his Fifth Amendment objection. Finally, Defendants seek an award of attorney's fees for work related to Gosselin's allegedly false testimony. (See R & R (Dkt. No. 106) at 6)

         On January 13, 2017, Judge Pitman issued an R & R recommending that Gosselin's motion to voluntarily dismiss his claims with prejudice be granted, subject to certain conditions. (See Id. at 23-24) Judge Pitman informed the parties that they had fourteen days from service of the R & R to file any objections pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, and that "failure to object within fourteen (14) days w[ould] result in a waiver of objections and w[ould] preclude appellate review." (Id. at 24) (emphasis omitted) No objections to the R & R were filed.

         DISCUSSION

         I. STANDARD OF REVIEW

         Because the parties did not file any objection to Judge Pitman's R & R, they have waived their right to de novo review by this Court. See Thomas v. Am, 474 U.S. 140,147-48 (1985); see also Razo v. Astrue, No. 04 Civ. 1348 (PAC) (DF), 2008 WL 2971670, at *2 ("For uncontested portions of the R & R, the court need only review the face of the record for clear error." (citing Wilds v. United Parcel Serv.. 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003))); Mario v. P & C Food Markets, Inc.. 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision." (citing Small v. Sec'v of Health and Human Servs.. 892 F.2d 15, 16 (2d Cir. 1989) (per curiam))); Spence v. Superintendent. Great Meadow Correctional Facility. 219 F.3d 162, 174 (2d Cir. 2000) ("Failure to timely object to a report generally waives any further judicial review of the findings contained in the report.").

         II. STIPULATED FACTS

         RUMC and Plaintiff Viera have reached agreement concerning twenty matters Gosselin addressed at his deposition. (See R & R (Dkt. No. 106) at 6-8, 11; July 29, 2016 Conf. Tr. (Dkt. No. 111) at 5-6) The City and Plaintiff Viera have reached agreement as to nine matters about which Gosselin testified. (See R & R (Dkt. No. 106) at 8-10, 12; July 29, 2016 Conf. Tr. (Dkt. No. 111) at 9-11) The Court addresses below the two remaining proposed stipulated facts that are in dispute.

         A. The City's Proposed Stipulated Fact No. 2

         The City's proposed Stipulated Fact No. 2 reads as follows:

After Mr. Gosselin informed Ms. Gayle-Curtis that Ms. Viera was deaf during an interview on December 2, 2014 at New York Presbyterian Hospital, Ms. Gayle-Curtis asked if Ms. Viera can read and write, to which Mr. Gosselin ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.