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BaRoss v. Greenlawn Volunteer Fire Department, Inc.

United States District Court, E.D. New York

May 15, 2017

JOAN BAROSS, as Executor of the Estate of, and on behalf of, John F. Baross, Sr., Plaintiff,
v.
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.

          Martin Clearwater & Bell, LLP Attorneys for the Defendants By: Gregory B. Reilly, Esq., Matthew M. Frank, Esq., Of Counsel.

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT United States District Judge.

         The 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”).

         Presently 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.

         I. BACKGROUND

         A. The Relevant Facts

         The following facts are drawn from the Plaintiff's complaint.

         The 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.

         In 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.

         On 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 Alzheimer's.

         On 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.

         The 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.

         On 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).

         Five 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.

         Between 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 decedent.

         On 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 nevertheless upheld.

         On 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 part:

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.

         Although 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.

         B. The Procedural History

         On 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.

         On October 31, 2016, the Defendants filed the instant motion to dismiss ...


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