United States District Court, E.D. New York
MARIE TURANO, LEONARD TURANO, and GEMMA SAMELE, individually and on behalf of all persons similarly situated. Plaintiffs,
HOWARD ZUCKER, as Commissioner of the New York State Department of Health, Defendant.
YORK LEGAL ASSISTANCE GROUP ATTORNEYS FOR THE PLAINTIFFS BY:
BETH GOLDMAN, ESQ., JANE GREENGOLD STEVENS, ESQ., ELIZABETH
JOIS, ESQ., BEN W. TAYLOR, ESQ., STEWART DEARING, ESQ., OF
OF THE NEW YORK STATE ATTORNEY GENERAL ATTORNEY FOR THE
DEFENDANT BY: DOROTHY O. NESE, ESQ., ASSISTANT ATTORNEY
MEMORANDUM OF DECISION & ORDER
D. SPATT UNITED STATES DISTRICT JUDGE
6, 2017, Marie Turano, Leonard Turano, and Gemma Samele
(together, the “Plaintiffs”), commenced this
purported class action against Howard Zucker in his official
capacity as the Commissioner of the New York State Department
of Health (“Zucker” or, the
“Defendant”). The Plaintiffs seek injunctive and
declaratory relief on behalf of themselves and a proposed
class of Medicaid recipients who reside in Westchester,
Nassau, and Suffolk counties for violations of Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, the
Americans with Disabilities Act of 1990, 42 U.S.C. §
12101 et seq., 42 U.S.C. § 1396 et
seq., and the Due Process Clause of the Fourteenth
Amendment of the United States Constitution.
Plaintiffs' seek to file an amended complaint that looks
to add two additional named Plaintiffs, Selman Roher, acting
through her next Friend Melanie Roher, and Salvatore
Guadagna; to update the facts to reflect additional events
that allegedly occurred since the filing of the complaint;
and add new allegations based on the newly named Plaintiffs
that focus on Medicaid-funded long-term care services. No new
causes of action are being added to the complaint.
3, 2017, the Plaintiffs also filed a motion seeking to
certify a class pursuant to Rule 23 of the Federal Rules of
Civil Procedure (“Rules” or “Fed R. Civ.
P.”). That motion is not yet fully briefed.
is currently in its early stages as initial disclosures have
been exchanged but discovery responses have not yet been
completed, and no depositions have been held.
August 31, 2017, the Plaintiffs filed the instant motion for
leave to amend the complaint. The Defendant has indicated
that he takes no position on the motion.
reasons explained below, the Plaintiffs' motion is
Civ. P. 15(a), which governs a motion to amend a complaint,
states, in relevant part, “A party may amend its
pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave
when justice so requires.” Fed.R.Civ.P.
15(a)(2) (emphasis added). Unless there is a showing of bad
faith, undue delay, futility or undue prejudice to the
non-moving parties, the district court should grant leave to
amend. Milanese v. Rust-Oleum Corp., 244 F.3d 104,
110 (2d Cir. 2001) (internal citations omitted); Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); Hemphill v. Schott, 141 F.3d 412, 420 (2d
Cir. 1998). The decision on whether to grant a motion to
amend rests within the sound discretion of the district
court. Aetna Cas. & Sur. Co. v. Aniero Concrete
Co., 404 F.3d 566, 603-04 (2d Cir. 2005);
Hemphill, 141 F.3d at 420.
where, as here, the proposed amended complaint adds new
parties, Fed.R.Civ.P. 21 also governs. Rule 21 explains that
“[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party.” Fed.R.Civ.P. 21;
see also City of Syracuse v. Onondaga Cty., 464 F.3d
297, 308 (2d Cir. 2006) (“Although Rule 21 contains no
restrictions on when motions to add or drop parties must be
made, the timing of the motion may influence the court's
discretion in determining to grant it.” (internal
citations and quotations omitted)).
Court has significant discretion to determine whether or not
to add a party, regardless of the stage of the litigation.
Sullivan ex rel. Pointer, Cleaners & Caulkers Welfare
Pension & Annuity Funds v. W. New York Residential,