United States District Court, E.D. New York
JOAN BAROSS, as Executor of the Estate of, and on behalf of, John F. Baross, Sr., Plaintiff,
GREENLAWN VOLUNTEER FIRE DEPARTMENT, INC., KURT ALLEN, STAN SADOWSKI, SCOTT WARYOLD, LEE JOSEPH, Defendants.
Berger, Fischoff & Shumer, LLP Attorneys for the
Plaintiff By: Brad A. Schlossberg, Esq., Of Counsel.
Clearwater & Bell, LLP Attorneys for the Defendants By:
Gregory B. Reilly, Esq., Matthew M. Frank, Esq., Of Counsel.
MEMORANDUM OF DECISION & ORDER
D. SPATT United States District Judge.
Plaintiff Joan BaRoss, as executor of the Estate of John F.
BaRoss, Sr. (the “Plaintiff”) brought this action
on behalf of John F. BaRoss, Sr. (the “decedent”)
against the Defendants Kurt Allen (“Allen”), Stan
Sadowski (“Sadowski”), Scott Waryold
(“Waryold”), Lee Joseph (“Joseph”)
(collectively, the “Individual Defendants”), and
the Greenlawn Volunteer Fire Department (the
“GVFD” or the “Department”)
(collectively, the “Defendants”). The Plaintiff
alleges that the Defendants discriminated against the
decedent in violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12131-12165 (the “ADA”),
and violated his constitutional rights in violation of 42
U.S.C. § 1983 (“Section 1983”).
before the Court is a motion by the Defendants to partially
dismiss the complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.” or “Rule”) 12(b)(1) and for
failure to state a claim pursuant to Rule 12(b)(6). For the
following reasons, the Defendants' motion is granted in
part and denied in part.
The Relevant Facts
following facts are drawn from the Plaintiff's complaint.
decedent was a resident of New York State. The Plaintiff was
his legal guardian at the time this action commenced, and is
now the executor of his estate. The decedent was a volunteer
fire fighter with the GVFD for more than 50 years. Allen is
the current chief of the GVFD; Sadowski is an Assistant
Chief; Waryold was a former chief; and Joseph is the
President of the GVFD.
2008, the decedent was diagnosed with Alzheimer's disease
(“Alzheimer's”). About that time, the
decedent became an inactive member of the GVFD; which meant
that although he did not respond to fires, he still worked at
events and fundraisers, and took part in social activities.
several occasions during the winter and spring of 2013, the
decedent was taken to the hospital by the GVFD. The decedent
told the transporting members of the GVFD that he had
August 29th and 30th, 2013, the
decedent was observed placing money that had been collected
at a fair held by the GVFD (the “fair”) into his
pocket. On August 31, 2013, members of the GVFD, including
the individual Defendants placed marked bills into the
decedent's cash box at the fair.
complaint does not state what happened during this
“sting” operation, but it alleges that members of
the GVFD accused the decedent of being a “thief”
and a “liar;” ordered him off of GVFD property;
and banned him from any future events.
September 22, 2013, members of the decedent's family met
with the leadership of the GVFD, and told them that the
decedent's behaviors at the fair were the
“symptoms” of his disease. The decedent's
family asked the GVFD to deal with the matter quietly because
the Department's accusations were “exacerbating his
Alzheimer's.” (Complaint at ¶ 27). The GVFD
leadership, including the individual Defendants told the
decedent's family that the decedent would be barred from
all department events; that they would hold a vote; and that
they “did not care if [the decedent] had
Alzheimer's.” (Id. at ¶ 29).
days later, on September 27, 2013, the decedent's family
sent a package to Waryold which included a letter from the
decedent's treating physician, and documents that
explained Alzheimer's disease. The letter said that the
decedent's behaviors at the fair “were most likely
unintentional and that [the decedent] did not realize the
implications of his actions.” (Id. at ¶
36). The letter asked that the decedent be allowed to
participate in other GVFD activities that did not involve the
handling of money.
September 27, 2013, and October 3, 2013, the GVFD had a full
membership meeting where the leadership, including the
individual Defendants, allegedly told the GVFD members that
the decedent was a thief who had stolen funds at the fair.
The leadership purportedly failed to inform the members of
the GVFD that the decedent had Alzheimer's. The
leadership recommended that the decedent be banned from all
future GVFD events, and the members voted to ban the
October 18, 2013, Waryold called the decedent's son to
tell him that the decedent was banned from all future GVFD
events. Waryold told the decedent's son that the letter
from the decedent's doctor as well as the decedent's
diagnosis were noted in the meeting, but that the ban was
November 16, 2013, Sadowski, Waryold, and Joseph delivered a
letter that was dated October 3, 2013 to the decedent's
son that was addressed to the decedent. The letter stated in
Please be advised that after meeting with your authorized
family member of September 22nd 2013, and two
telephone conversations with your son it is apparent that the
best resolve regarding the incident of August 28, 2013, for
all parties involved that you not attend Any Greenlawn Fire
Department Inc. sponsored events for a period of two years
from the date of this letter 10/03/13 till 10/03/15[.] Events
include meetings - Department, Company, Rescue Squad, Social
gatherings, Firemen's Fair and all activities paid for
and sponsored with Greenlawn Volunteer Fire Department Inc.
funds for this period.
(Id. at ¶ 50). The letter also stated that it
was authorized by a vote of the GVFD.
the timeline is unclear, the complaint also states that some
members of the GVFD leadership indicated that they would
overturn the decedent's ban because of his disease.
However, the ban was never overturned.
The Procedural History
August 26, 2016, the Plaintiff initiated this action by
filing a complaint. Although the complaint numbered six
causes of action, there were more: discrimination under the
ADA against all of the Defendants; deprivation of substantive
due process in violation of 1983 against all of the
Defendants; deprivation of procedural due process in
violation of Section 1983 against all of the Defendants;
deprivation of equal protection under the law in violation of
Section 1983 against all of the Defendants; intentional or
reckless indifference to the decedent's constitutional
rights in violation of 1983; discrimination under the NYSHRL;
intentional infliction of emotional distress; and negligence.
October 31, 2016, the Defendants filed the instant motion to