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Lloyd v. City of New York

United States District Court, S.D. New York

March 31, 2017

ALYSSA LLOYD, Plaintiff,



         Ms. Alyssa Lloyd worked for a number of years coordinating appointments for escorts. She asserts that the liaisons that she arranged were not sexual, but nonetheless, she was caught up in an undercover sting targeting suspected prostitution in her workplace. The officers who rushed in to arrest her and others did not know at first that Ms. Lloyd was a recovering breast cancer survivor. They did not know when they pushed her to the ground that her breasts had recently been removed, and that her surgical breast reconstruction had not healed and was fragile. Ms. Lloyd says that the officers did know those facts, however, when they handcuffed her behind her back, tearing the stitches in her chest. In this case, Ms. Lloyd brings a claim of excessive force against the officers who pushed her to the ground and handcuffed her. She also claims that the officers, and the doctor who later evaluated her in jail, were indifferent to her medical needs. Because there are disputed issues of fact regarding the circumstances of her arrest and the officers' handcuffing of Plaintiff, the officers' motion for summary judgment for her claims of excessive force are denied. Ms. Lloyd's constitutional claims related to deliberate indifference to her medical needs, however, are dismissed, principally because the officers offered her treatment after her arrest which she declined.

         I. BACKGROUND

         A. Factual Background[1]

         1. Ms. Lloyd's Cancer Diagnosis and Treatment

         Plaintiff, Ms. Alyssa Lloyd, worked “arranging dates” for women who advertised their services as escorts-booking appointments by telephone. At the time of the events in this case, she was in her early 40s. She had arrived at her job as a liaison between escorts and their customers after a long path, dropping out of New York University, taking massage classes, and working for some time as a nanny in Westchester.

         Ms. Lloyd's life changed in August 2012, when she was diagnosed with breast cancer. Plaintiff's Response to Medical Defendants' Local Rule 56.1 Statement (Dkt. No. 111) (“Pl. Med. 56.1”) ¶¶ 88-90. After her diagnosis in late 2012, Ms. Lloyd was treated with chemotherapy, which significantly improved her condition. Id. ¶¶ 91-92. However, in order to treat her cancer, Ms. Lloyd also decided to undergo a double mastectomy-surgical removal of both of her breasts. Id. ¶ 96.

         In the early summer of 2013, with her mastectomy approaching, Ms. Lloyd began to consult with a plastic surgeon about options to reconstruct her breasts. On June 6, 2013, Ms. Lloyd met for the first time with her plastic surgeon, Dr. Cherry Chang, M.D. Id. ¶¶ 93, 96. After conferring with Dr. Chang, Ms. Lloyd decided to reconstruct her breasts immediately after their removal, using surgically-implanted breast expanders which would be inflated through injections of saline. Id. ¶¶ 101, 112. Breast implantation, like any surgery, comes with risks. And Dr. Chang reviewed the risks associated with breast reconstruction generally, and particularly the issues associated with breast implants. The risks were significant: infection, wound healing issues, unfavorable scarring, asymmetry, implant failure, and the possibility of requiring future corrective surgery, among others. Id. ¶¶ 103-06. Because Ms. Lloyd would also need radiation therapy even after the mastectomy, she was at risk for still further complications. Id. ¶ 107.

         Ms. Lloyd's breasts were removed during an operation on June 17, 2013. Id. ¶ 108. During the same surgery, Dr. Chang inserted two tissue expanders and implants into her breasts-the first of many steps in Plaintiff's breast reconstruction. Id. ¶ 109. The next step-inflation of the tissue expanders using saline injections-began in July 2013 and continued through September 2013. Id. ¶¶ 112-137. Unfortunately, early in her treatment, Ms. Lloyd began to experience complications from the procedure. Beginning in early August 2013, Plaintiff began to complain that saline was leaking from her right tissue expander. Id. ¶ 114. Dr. Chang reacted promptly; in a surgical procedure on August 23, he removed Ms. Lloyd's right implant and exchanged her right tissue expander. Id. ¶¶ 129-30.

         Following the surgery, Ms. Lloyd was allowed to exercise “a little.” Plaintiff's Response to City Defendants' Local Rule 56.1 Statement (“Pl. City 56.1”) ¶ 218. But the repair proved fragile. In mid-September, the stitches in Ms. Lloyd's chest ripped while she was making her bed, doing nothing more than stretching her arm to spread a comforter. Pl. City 56.1 ¶ 219. Sticky, salty fluid that Ms. Lloyd believed to be saline leaked from the wound, irritating her skin. Id. ¶ 220.

         So only four weeks after the replacement of her right expander, on September 17, Plaintiff was back in Dr. Chang's office. Pl. Med. 56.1 ¶ 138. That very morning, Plaintiff had noticed some leakage from her right breast incision. Id. ¶ 139. During her visit, Dr. Chang found that some of Ms. Lloyd's sutures were coming apart, and, perhaps, some leakage. Dr. Chang sutured the incision closed. Id. ¶ 140. He also prescribed Cefadroxil, an antibiotic. Ms. Lloyd was directed to take two pills of the medication per day over the course of one week. Id. ¶¶ 142-43.

         But the problems did not end. Ms. Lloyd returned to Dr. Chang's office two days later, on September 19, 2013, again reporting persistent saline leakage. Id. ¶ 144-45. Dr. Chang decided that an operation was necessary to again replace Ms. Lloyd's right tissue expander. Id. ¶ 146. He scheduled the surgery to take place four days later-September 23, 2013. Id. ¶ 149. Ms. Lloyd would not make it to her surgery that day. Instead, because of the events that unfolded next, she would be on Rikers Island.

         2. The Events of September 20, 2013

         a. Plaintiff's Arrest

         Detective James Rufle worked for the New York City Police Department Vice Major Case Squad. As its name suggests, the squad targets prostitution and vice-related crimes. In September 2013, Detective Rufle was investigating Ms. Lloyd and the business where she worked at 408 East 64th Street in Manhattan. Pl. City. 56.1 ¶¶ 1-2. As described above, Ms. Lloyd worked as a liaison, connecting men and women who, occasionally, met at her workplace. The police suspected that Ms. Lloyd was running a website that was promoting prostitution. Id. ¶ 3. On September 20, 2013, the police organized a “buy and bust” tactical operation at Ms. Lloyd's place of work. The team assembled for the operation included Detective Rufle, together with Detectives Paul Byrne and David Mills, Sergeant Gregory Graves, and one undercover officer-known here only by his codename, UC 137. Id. ¶¶ 4-5.[2]

         Early in the operation, UC 137 called Ms. Lloyd using a number provided by Detective Rufle. Id. ¶ 11. The parties dispute whether UC 137 and Plaintiff discussed exchanging sex for money, or whether they merely discussed a paid arrangement for non-sexual companionship. It is undisputed, however, that Ms. Lloyd made an appointment for UC 137 to meet with a woman in the apartment on East 64th Street where Ms. Lloyd worked the phones. Id. ¶ 12.

         A short time later, UC 137 arrived at the apartment. Ms. Lloyd let him in. Id. ¶ 14. Soon thereafter, UC 137 signaled to the other members of the field team, likely by text message, that there was an agreement to exchange sex for money, although as noted, Plaintiff disputes that she ever entered into any such an agreement. Id. ¶ 16.

         Triggered by UC 137's signal, a number of officers entered the apartment to secure the undercover officer and make their arrests. How the police entered the apartment, and what they did upon entry are the subject of material dispute. The officers take the position that they knocked on the door, announced that they were police, and made numerous requests that the tenants of the apartment open the door. Because no one opened the door voluntarily, the officers forcibly breached the door using a ram. Id. ¶¶ 18-20. As Sergeant Graves testified at his deposition “whoever was behind the door, refused to open . . . . We heard movement inside. At that point our undercover's safety was in question” so he “instructed Detective Mills” to “breach the door” with a heavy breaching ram. Deposition of Gregory Graves, annexed as Ex. C to Jacobs Decl., at 37:24-38:6.

         Ms. Lloyd, on the other hand, asserts that the ramming began immediately, at the same time police announced themselves. In her version of events, Ms. Lloyd told the officers repeatedly that she would open the door if they would only stop ramming it. But the officers continued to ram the door until it broke. Pl. City 56.1 ¶¶ 19-20. Ms. Lloyd's account is supported by her deposition testimony. There, she testified that she went to open the door to the apartment, and that “right before I opened the door, the door slammed, and they said, this is the police.” Deposition of Alyssa Lloyd, annexed as Ex. A to Declaration of Elissa B. Jacobs (Dkt. No. 87) at 141:15-17. “They took the ram and they smashed the door” but Ms. Lloyd “kept saying, listen, I'm behind the door, there's not-not much room, if you want me to open it, you need to stop slamming the door.” Id. at 141:22-142:2.

         As much as the parties dispute how the officers entered the apartment, they disagree about what happened afterward-particularly about where Ms. Lloyd and the undercover officer were at various times after the named officers entered the apartment. According to Sergeant Graves, Ms. Lloyd obstructed him after he entered. Sergeant Graves testified that after the officers breached the door and entered the apartment, “we encountered a female who was in the hallway in close proximity to the front door . . . .” He “entered further with this female in front of me and observed in the back more movement of an unknown person in a back room.” Graves Dep. at 38:16-24. “I was trying to make my way to the . . . back of the apartment” but the “[f]emale in front of me would not allow me to pass . . . .” Id. at 39:12-17. Sergeant Graves claims that he did not know where UC 137 was after he entered the apartment and was concerned about his safety, testifying that after his interaction with Ms. Lloyd, he “continue[d] on to the back room, at that time [I] did not know the location of the undercover.” Id. at 39:21-23.

         Ms. Lloyd says that she knew the location of the undercover. In her telling, UC 137 was standing near her, in plain sight of any officer entering: Sergeant Graves must have seen UC 137 when he entered and known that he was safe. Pl. City 56.1 ¶ 22. She testified as much at her deposition. She said that throughout the time officers were slamming on the door, UC 137 was “standing by the door, watching me . . . Yelling at the people.” Lloyd Dep. at 142:7-10. She has also submitted an affidavit stating that “UC 137 was standing near to me in plain sight of any officer entering the apartment” and that “Sergeant Graves must have seen UC 137 on entry to the apartment and known UC 137 was safe. Indeed, Sergeant Graves rushed past UC 137 to reach me.” Affidavit of Alyssa Lloyd (Dkt. No. 102) (“Lloyd Aff.”) ¶¶ 7, 9.

         Ms. Lloyd disputes Sergeant Graves' contention that she obstructed him as the officers entered the apartment. Much to the contrary, she asserts in her response to the City Defendants' 56.1 statement, she “had stepped back and to the side, into the kitchen area beyond the hallway, before the officers entered the apartment.” Pl. City 56.1 ¶ 23. And in her deposition, Ms. Lloyd testified that when officers opened the door “I stepped away in the little hallway and my-they smashed the door.” Lloyd Dep. at 142:11-14. Previous testimony by Ms. Lloyd pursuant to New York General Municipal Law § 50-H was consistent: When police were attempting to enter the apartment, she “stood in the kitchen with my hands up and waited for them to open the door” and that she “stayed in the kitchen area, hallway area, with my hands up waiting for them to open the door with the battering ram;” she “didn't want to be next to the door in case they hit me with it.” 50-H Hearing, annexed as Ex. Q to Declaration of Ana Maria Vizzo (Dkt. No. 91), at 29:9-22; see also Lloyd Aff. ¶ 6.

         It is undisputed, however, that after Sergeant Graves entered the apartment he pushed Ms. Lloyd's right arm. As a result, she fell to the ground, where she remained for approximately one minute. Id. ¶¶ 28-29. Ms. Lloyd asserts that the push injured her; it “caused a further rip in the stitches on the right side of my chest, aggravating the saline leakage from my right expander, which, in turn, further irritated my skin.” Lloyd Aff. ¶ 11.[3]

         After she was pushed down, Plaintiff told the officers repeatedly that she had cancer. She even showed them the bandaged area around her chest. Pl. City 56.1 ¶ 31. Now, for the first time, Sergeant Graves was aware of Ms. Lloyd's breast cancer diagnosis. Id. ¶ 32. Once the officers saw Ms. Lloyd's condition, they helped her up and put her on a bed. Id. ¶ 33. She was then placed under arrest. Ms. Lloyd did not know it yet, but she had been arrested for promotion of prostitution-a felony. Id. ¶ 34.

         Ms. Lloyd was then handcuffed by an unidentified officer. Id. ¶ 35. The officers were now aware of her medical condition. As a result, rather than using one set of handcuffs to cuff her hands behind her back, the officers used at least two sets of handcuffs. The parties refer to that practice as “double cuffing, ” and the Court will adopt the term. Id. ¶ 36. The Court presumes that double cuffing allows an officer to link two sets of handcuffs in series, creating more space between an arrestee's hands, and reducing the strain on her chest and shoulders when her arms are pulled behind her back. Whatever its palliative effect, from Ms. Lloyd's perspective, double cuffing was not enough. She protested even double cuffing behind her back because of her medical condition, and asked that the officers handcuff her in front with single handcuffs. Id. ¶¶ 235-36. Ms. Lloyd asserts that the rear double cuffing caused stitches on the right side of her chest to rip further, aggravating the saline leakage from her right expander and further irritating her skin. Id. ¶ 237.

         b. The 19th Precinct

         Officers transported Ms. Lloyd to the 19th Precinct station house. There, the rear handcuffs were removed, and she was secured by one wrist to a bench. Id. ¶ 44. Ms. Lloyd's purse was also brought to the 19th Precinct. It contained antibiotics and dressing changes to treat her chest. Id. ¶ 242. While waiting on the bench, Ms. Lloyd asked several officers if she could take her medication, and also asked too if she could change her bandages. Id. ¶ 45. The officers told Plaintiff to wait for her arresting officers. Id. ¶ 46.

         After her wait on the bench, officers again placed Ms. Lloyd in handcuffs, then escorted her to the station's squad room to be interviewed. Id. ¶ 48. Two of her arresting officers, Detective Mills and Detective Rufle, met Ms. Lloyd inside the squad room. Detective Rufle removed Ms. Lloyd's handcuffs “because she had an injury.” Id. ¶¶ 49-50. Ms. Lloyd asked Detective Rufle to let her take her medication. Detective Rufle told Ms. Lloyd that he was unable to administer medicine because he was not a doctor. Id. ¶¶ 51-52.

         It is undisputed that the detective also told her, however, that she could go to the hospital to have her medication administered. Id. ¶ 52. It is also undisputed that Ms. Lloyd elected to continue being processed in her criminal proceeding, rather than go to the hospital to have her medication administered. Check Id. ¶ 55. But Ms. Lloyd asserts that she decided not to go to the hospital because she was told by the officers that a trip to the hospital would delay her criminal processing and her release from jail. As Ms. Lloyd asserts in an affidavit, Detective Rufle told her a trip to the hospital would “delay my arraignment and release on my own recognizance on a misdemeanor charge, in time to make my surgery.” Lloyd Aff. ¶ 21; accord Lloyd Dep. at 161:7-9; 162:8-13.

         Believing that she would be released on her own recognizance on a misdemeanor charge in time to make her scheduled surgery, Ms. Lloyd declined to visit the hospital and opted to continue with processing. Id. ¶ 55. She even signed a medical treatment of prisoner form, indicating her refusal to obtain medical treatment and go to the hospital, although Plaintiff again asserts that she did so in reliance on officers' false assurances that she would be released on her own recognizance on a misdemeanor charge in time to make her scheduled surgery. Id. ¶ 56.

         At some point during her time in the 19th Precinct, Ms. Lloyd explained to Detectives Rufle and Mills that she needed to change the dressing on her chest to stave off and limit infection. Id. ¶ 247. In response, Detective Mills allowed Plaintiff to use the restroom to “address something with her chest.” Ms. Lloyd replaced dressing on her chest, now soaked with saline, with sanitary napkins she found in the restroom. Id. ¶ 249. An officer also “snuck” her an antibiotic from her purse. Id. ¶ 246.

         c. Plaintiffs Arraignment

         Late in the evening of September 20, 2013, Ms. Lloyd was again placed in rear double cuffs for transport from the 19th Precinct to Central Booking. Id. ¶ 61. Ms. Lloyd remained in rear double cuffs for three to five hours during the trip to Central Booking, and while she stood in line there. Id. ¶ 252. She complained repeatedly to Detectives Byrne and Mills about pain and discomfort from the handcuffs. But they ignored her complaints. Id. ¶ 253.

         The parties dispute whether Ms. Lloyd received treatment during her stop at Central Booking. The officers assert that Ms. Lloyd was seen by EMS at Central Booking and refused to be treated. Id. ¶ 64. Ms. Lloyd rejects that version of events, and states in her affidavit that “[h]ad someone from EMS seen me, he or she would have removed the sanitary napkins from my chest and replaced them with a proper dressing.” Lloyd Aff. ¶ 31. Ms. Lloyd asserts that the intake officer at Central Booking “refused to take” her because she had an open wound on her chest, telling Detectives Byrne and Mills that she needed to go to a hospital. Pl. City 56.1 ¶ 254. Instead, the detectives brought Ms. Lloyd to the 7th Precinct, to be held overnight until her arraignment. Id. ¶¶ 65, 255.

         On September 21, 2013, Ms. Lloyd was arraigned in New York City Criminal Court on charges of promoting prostitution in the third degree, a felony, and permitting prostitution, a misdemeanor. Id. ¶ 257. The presiding judge set bail at $10, 000 bond or $5, 000 cash. Pl. Med. 56.1 ¶ 156. The Court presumes that Ms. Lloyd was unable to meet those requirements for release, because later that day, she was transported again-this time to Rikers Island.

         d. Rikers Island

         Plaintiff was transferred to Rikers Island in the evening of September 21, 2013. Pl. Med. Id. ¶ 157. Early the next morning, a nurse evaluated Ms. Lloyd, taking her vitals and administering a series of tests. Id. ¶ 158. Later, Ms. Lloyd was seen by Dr. Mohammad Alam, M.D., who performed a “new admission” examination. Id. ¶ 160. Dr. Alam documented Ms. Lloyd's preexisting medical conditions and treatment, in particular her breast cancer diagnosis, chemotherapy, mastectomy, and reconstructive surgery. Id. ¶¶ 161-62. Ms. Lloyd told Dr. Alam that she was taking oral antibiotics and required daily dressing changes. She also told the doctor that she had a follow-up procedure scheduled with Dr. Chang the following day. Id. ¶¶ 163-64.

         The parties dispute whether Dr. Alam examined Plaintiff's breasts. Id. ¶¶ 168-69. Dr. Alam cites to a portion of his deposition where he testified, when asked if Plaintiff “at any point pull[ed] up her shirt to show you what was underneath” that “I opened it and I looked at what is there.” Deposition of Mohammed Alam, M.D. (annexed as Ex. T to Vizzo Decl.) at 38:9-13. He also cites to his physical examination notes which reflect that he recorded that Ms. Lloyd had a suture in place on her right breast with redness around the tape site, and mild discharge on the dressing. Vizzo Decl., Ex. E at 9. On the other hand, Ms. Lloyd maintains that she lifted her shirt to show Dr. Alam “the sanitary napkins covering my chest, which by now were not only saline-soaked but also pus-filled” but that “Dr. Alam did not examine my chest.” Affidavit of Alyssa Lloyd (Dkt. No. 107) (“Lloyd Aff. 2”) ¶¶ 17, 19.

         Ms. Lloyd maintains that she “asked Dr. Alam for antibiotics and a dressing change immediately, ” but he did not do so, and that she did not “hear Dr. Alam ask or instruct” anyone to provide her with the same. Lloyd Aff. 2 ¶¶ 20-22 (emphasis added). But it is undisputed that during his examination and thereafter, Dr. Alam took a number of steps to provide future treatment for Ms. Lloyd. Dr. Alam made referrals to Plastic Surgery and Oncology at Elmhurst Hospital. Pl. Med. 56.1 ¶ 174. He directed that Plaintiff's dressings be changed daily for seven days. He prescribed a number of additional medications and treatments: hydrocortisone cream for dermatitis of the right breast to be applied twice daily, and Librium as a replacement for Diazepam, which Plaintiff had been taking outside of jail for muscle spasms under her breasts. Id. ¶ 175. Dr. Alam realized that the antibiotic she had been taking prior to her arrest was not available in the facility's pharmacy. Id. ¶ 171. He prescribed a “STAT” dose of Keflex as an alternative antibiotic. Id. ¶ 172. Ms. Lloyd does not dispute these facts, but points out that Dr. Alam did not electronically sign his notes until 3:46 p.m., which was several hours after he physically examined her. Vizzo Decl., Ex. E at 12.

         Plaintiff had no further contact with Dr. Alam. Pl. Med. 56.1 ¶ 176. Records indicate that Dr. Henry Thurka, M.D., another doctor at the facility, changed Plaintiff's antibiotic from Keflex to Augmentin shortly after Dr. Alam's consultation because Keflex was not available in the facility's pharmacy. Id. ¶ 177-178. There is a dispute regarding whether Ms. Lloyd received her antibiotic on September 22. Records from Pyxis, a medication dispensing system, state that a dose of Augmentin was distributed to Plaintiff at 10:12 p.m. on September 22, 2013. Id. ¶ 179. However, Plaintiff maintains that she never received antibiotics at Rikers on Sunday, September 22, 2013. Lloyd Aff. 2 ¶ 27. It is undisputed, however, that Ms. Lloyd received medical treatment, including the dressing changes ordered by Dr. Alam, wound care, and antibiotics, on a daily basis throughout the rest of her period of detention on Rikers Island. Id. ¶¶ 181-83.

         e. Release from Rikers Island

         Ms. Lloyd was released from Rikers Island on September 26, 2013, six days after her arrest, and three days after her originally scheduled surgery date. Id. ¶ 193. Five days after her release, on October 1, 2013, Ms. Lloyd returned to Dr. Chang's office. Id. ¶ 194. Dr. Chang's notes documented the reason Ms. Lloyd had missed her operation as “due to sudden death of relative.” Id. Dr. Chang examined Ms. Lloyd and found that her surgical incision wound was in “breakdown” and noted drainage in her right breast. Id. ¶ 195. During that visit, Dr. Chang deflated Ms. Lloyd's right tissue expander. Id. ¶ 197. But she needed additional surgery. On October 3, 3013, Ms. Lloyd went to New York Hospital Queens for a procedure to remove her right tissue expander and explore the reconstruction of her right breast. Id. ¶ 198. During the operation, Ms. Lloyd's right breast was found to be infected, requiring that it be washed out with fluid and removal of the tissue expander. Id. ¶ 200.

         Ms. Lloyd did not immediately pursue additional reconstructive surgery, in part because she was to commence radiation therapy. From December 2013 to May 2014, she received radiation treatment. Id. ¶ 208. Since completing radiation, Dr. Chang has recommended that Ms. Lloyd reconstruct her right breast using tissue from other parts of her body. Id. ¶ 211. But as of May 31, 2016, Ms. Lloyd had not yet undertaken additional reconstruction surgery. Id. ¶ 213.

         B. Procedural History

         The amended complaint in this matter was filed on May 14, 2015. Dkt. No. 15. On August 8, 2016, the parties entered into a Stipulation and Order of Dismissal, pursuant to which Plaintiff withdrew a number of claims asserted in the amended complaint, namely: false arrest under 42 U.S.C. § 1983 and under New York law, malicious prosecution under 42 U.S.C. § 1983 and under New York law, violation of the right to a fair trial under 42 U.S.C. § 1983, deliberate indifference to serious medical needs under New York law, negligent screening, hiring and retention under New York law, and negligent training and supervision under New York law. Dkt. No. 85.

         Plaintiff also withdrew a number of claims to the extent they were asserted against Corizon Health, Inc. and Dr. Alam, and withdrew her claims under the Americans with Disabilities Act and Rehabilitation Act against all Defendants except the City of New York. Id. Finally, Plaintiff dismissed the following named defendants from this case: Achille Antoine, Yvette Avery-Hughes, Adrian Campos, Dominique Georges, Shalonda Gonzalez, Rachelle Hogans-Blair, Bernadette James, Cynthia Lallemand, Raquel Murphy, Esperance Ndayishimiye, Annie Panis, Lisa Polite, Sean Ryan, Undercover Officer C146, and Scott Velasquez. Id.

         The remaining Defendants are the City of New York, Sergeant Gregory Graves, UC 137, Detectives James Rufle, Paul Byrne, and David Mills, Corizon Health, Inc. and Dr. Mohammad Alam. The remaining claims against the City Defendants are: deliberate indifference to serious medical needs under 42 U.S.C. § 1983, excessive force under 42 U.S.C. § 1983, failure to intervene under 42 U.S.C. § 1983, municipal liability under 42 U.S.C. § 1983, claims under the Americans with Disabilities Act and Rehabilitation Act of 1973, assault and battery under New York law, respondeatsuperior liability under New ...

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