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Hopkins v. Booth

United States District Court, W.D. New York

November 20, 2017

COLLEEN HOPKINS, KATHRYN DiSALVO, DOUGLAS MORRIS, Executor of the Estate of Margaret Morris, Plaintiffs,
JOHN S. BOOTH, III, Defendant.

          JULES ZACHER, P.C., JULES ZACHER, BURGETT & ROBBINS Attorneys for Plaintiffs

          GOLDBERG SEGALLA LLP JOSEPH J. WELTER, JASON BOTTICELLI, of Counsel Attorneys for Defendant




         This matter was referred to the undersigned by order of Hon. Lawrence J. Vilardo on August 21, 2017 (Dkt. 13) for all pretrial matters. It is presently before the court on Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) filed August 4, 2017 (Dkt. 10), and Defendant's request to strike Plaintiffs' counsel's declaration and other exhibits which were included in Defendant's Reply filed August 30, 217 (Dkt. 15).[1]


         Plaintiffs' complaint, based on diversity, alleging negligence (Count I), negligence per se (Count II), wrongful death (Count III), survival damages (Count IV) and punitive damages (Count V), was filed December 21, 2016. In lieu of answer, Defendant filed, pursuant to Rule 12(b)(6), the instant motion on August 4, 2017 (Dkt. 10) to dismiss Plaintiffs' Counts II, III, IV, and V (Dkt. 10) (“Defendant's motion”) together with the Memorandum of Law In Support of Defendant's Motion to Dismiss Counts II, III, IV, and V of Plaintiffs' Complaint pursuant to Rule 12(b)(6) (Dkt. 10-1) (“Defendant's Memorandum”). On August 8, 2017, Plaintiffs filed a Memorandum of Law In Opposition To Defendant's Motion To Dismiss Counts II, III, IV and V Of Plaintiffs' Complaint (Dkt. 11) attaching as Exhibit 1, the Declaration of Jules Zacher, Esq. (Dkt. 11-1) (“Zacher Declaration”), and a volume of exhibits (Dkt. 11-2) containing, inter alia, Exhibit 2 (New York State Department of Health Record (“N.Y.S. Dep't of Health Record”)), Exhibit 3 (Allegany County Department of Health Letter dated September 29, 2016 (“County Dep't of Health Letter”)), Exhibit 4 (copy of a death certificate for Margaret D. Morris (“Morris Death Certificate”), Plaintiff Douglas Morris's decedent), and Exhibit 5 (copy of Plaintiffs' 1st Amended Complaint (“the Amended Complaint”)) (“Plaintiffs' Exh(s). ___”). On August 30, 2017, Defendant filed a Reply Memorandum Of Law In Further Support Of Defendant's Motion To Dismiss Portions Of Plaintiffs' Complaint Pursuant To Fed.R.Civ.P. 12(b)(6) (Dkt. 15) (“Defendant's Reply”). Oral argument was deemed unnecessary. Based on the following, Defendant's motion should be GRANTED in part, and DENIED in part; Defendant's request to strike is GRANTED.


         Between August 29 and September 4, 2016, Plaintiffs Kathryn DiSalvo (“DiSalvo”), a Pennsylvania resident, and Colleen Hopkins (“Hopkins”), a resident of Delaware, and Margaret Morris (“Morris”) (“Plaintiffs”), [3] then a Delaware resident, stayed at Defendant's property on Cuba Lake, called the Lakehouse, located at 311 North Shore Road in Cuba, New York (“Defendant's premises” or “Defendant's property” or “the Lakehouse”). During their stay at the Lakehouse, Plaintiffs contracted a respiratory infection later diagnosed as Legionnaires' disease[4] as a result of Plaintiffs' use of water at the Lakehouse and the use of or exposure to a hot tub located below a second-story porch of the Lakehouse which Defendant made available for Plaintiffs' use. Plaintiffs DiSalvo and Hopkins allege they used the hot tub; it is alleged that Morris was exposed to the steam and vapor created by the use of the hot tub while on the Lakehouse porch above the tub containing the Legionella bacteria. During early September 2016, shortly after their stay at the Lakehouse, Plaintiffs were diagnosed with symptoms consistent with Legionnaires' disease including shortness of breath, chills, nausea, chest pain, headaches, and fever from which DiSalvo and Hopkins eventually recovered; however, following several days of intensive medical treatments, Morris expired on September 15, 2016 at a Wilmington, Delaware hospital. Morris's son, Douglas, was subsequently appointed executor of her estate as a plaintiff in this action. As a result of Plaintiffs' alleged exposure to the Legionnaires' disease bacteria while on Defendant's property, Plaintiffs suffered serious pain and suffering including significant medical bills and future treatment for Plaintiffs DiSalvo and Hopkins.

         In Defendant's motion, Defendant contends Plaintiffs' Count II fails to state a claim for negligence per se under applicable New York law, based on a stated New York State Department of Health regulation covering hot tubs operated by businesses, 10 N.Y.C.R.R. § 6-1.25, (“§ 6-1.25”), as under New York law[5] a claim of negligence per se may not be based on an administrative regulation. Defendant's Memorandum (Dkt. 10-1) at 7. Defendant further contends Plaintiff Douglas Morris's Count III improperly seeks both pecuniary and non-pecuniary damages, i.e., pain and suffering, beyond the scope of damages available in a wrongful death action as permitted under N.Y. Est. Powers & Trusts Law § 5-4.3 (“§ 5-4.3”) (McKinney's 1986) (compensation for distributees limited to “pecuniary injuries resulting from the decedent's death”), and that Count III fails to allege that the allowable pecuniary expenses had been paid by the distributees. Dkt. 10-1 at 7-9. Defendant also asserts Count IV for “survival damages” based on N.Y. Est. Powers & Trusts Law § 11-3.1 fails to state a cognizable claim under New York law as alleged by Plaintiffs which statute by its terms is inapplicable to personal injury claims. See N.Y. Est. Powers & Trusts Law § 11-3.1 (“Any actions other than an action for injury to person or property, may be maintained by and against a personal representative in all cases and in such manner as such action might have been maintained by or against his decedent.”)[6] (underlining added).[7] Finally, Defendant maintains that Plaintiffs' Count V seeking punitive damages must also be dismissed as New York does not recognize a separate claim for such damages, and in any event Plaintiffs' Count V insufficiently alleges either malice, willful and wonton misconduct or gross negligence required under New York law to support any award of punitive damages (“Defendant's motion”).

         Plaintiffs responded to Defendant's motion by filing on August 8, 2017, pursuant to Fed.R.Civ.P. 15(a)(1)(B) (“Rule 15(a)(1)(B)”) (permitting an amended pleading within 21 days after the initial pleadings in the absence of a responsive pleading), Plaintiffs' 1stAmended Complaint (Dkt. 12) (“the Amended Complaint”), in which Plaintiffs (1) delete Plaintiffs' Count V and, instead, add allegations in support of Plaintiffs' request for punitive damages (Dkt. 12 ¶ 24) to Plaintiffs' Count I alleging negligence and Count II alleging negligence per se, (2) reallege Plaintiffs' Count II asserting negligence per se based on Defendant's violation of N.Y. Pub. Health Law § 225 (McKinney's 2011) (“§ 225”) which provides the statutory authority for § 6-1.25, [8] Defendant's alleged violation of which Plaintiffs continue to contend, Plaintiffs' Memorandum, Dkt. 11, at 6, adequately supports Plaintiffs' negligence per se claim under New York law as alleged in Plaintiffs' Count II, (3) reallege Plaintiffs' Count III (wrongful death) limited to a claim for pecuniary damages for Morris's distributees and, (4) delete Plaintiffs' Counts IV (alleging survival damages) and V (alleging a separate claim for punitive damages).

         In Defendant's Reply, Defendant continue to argue that Plaintiffs' Count II (negligence per se) is insufficient in that under New York law negligence per se cannot be solely predicated on a violation of regulations promulgated pursuant to a statute, and Plaintiffs' reliance in Count II of the Amended Complaint on § 225 is misplaced as the statute includes no standards for the maintenance and safety of water systems or hot tubs, the violation of which could, under applicable New York law, support a claim of negligence per se. Dkt. 15 at 1-3.[9] Defendant further contends Plaintiffs' attempt to include a punitive damages claim in Plaintiffs' Count I (negligence) of the Amended Complaint is nevertheless defective in that Plaintiffs' allegations in support of any punitive damage award are insufficiently factual and lack sufficient indicia of wanton conduct or gross negligence required under New York law to support a claim for punitive damages and thus, under federal law as applicable to a Rule 12(b)(6) motion, see Tianbo Huang v. iTV Media, Inc. 13 F.Supp.3d 246, 254 (E.D.N.Y. 2014) (Rule 12(b)(6) applies to motions to dismiss in diversity actions), rendering Plaintiffs' punitive damage request implausible, requiring dismissal. Dkt. 15 at 4-6. Finally, Defendant objects to Plaintiffs' inclusion of Plaintiffs' Exhibits 1-5 in Plaintiffs' opposition, Dkt. 11-2, to Defendant's motion as not referenced in the Amended Complaint, and therefore requests the exhibits be stricken.[10]


         In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), the Supreme Court requires application of “a ‘plausibility standard, ' which is guided by ‘[t]wo working principles.'” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “First, although ‘a court must accept as true all of the allegations contained in a complaint, ' that ‘tenet' is inapplicable to legal conclusions, ' and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' ” Id. at 72 (quoting Iqbal, 556 U.S. at 678). “ ‘Second, only a complaint that states a plausible claim for relief survives a motion to dismiss, ' and ‘[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' ” Id. (quoting Iqbal, 556 U.S. at 670).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim will have ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' ” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Ashcroft, 556 U.S. at 678); see Twombly, 550 U.S. at 570 (the complaint must plead “enough facts to state a claim to relief that is plausible on its face”). The factual allegations of the complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 570.

         “In ruling on a 12(b)(6) motion, ... a court may consider the complaint as well as ‘any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference.' ” Kalyanaram v. American Ass'n of University Professors at New York Institute of Technology, Inc., 742 F.3d 42, 44 n. 1 (2d Cir. 2014) (quoting Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001)). “Moreover, ‘on a motion to dismiss, a court may consider ... matters of which judicial notice may be taken, [and] documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.' ” Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).[11]

         Here, the parties agree that the Amended Complaint has rendered moot Defendant's challenges to Morris's wrongful death claim (Count III), as originally pleaded in Plaintiffs Morris's Count III of the Complaint, as Morris no longer seeks non-pecuniary damages. See Defendant's Reply at 1; Plaintiffs' Memorandum at 4 (requesting denial of Defendant's motion as to Count III as moot). Further, as the Amended Complaint deletes any reference to Morris's Count IV alleging a claim for survival damages, and Count V alleging a separate punitive damages claim, Defendant's motion directed to these claims is also moot. Defendant's Memorandum at 1; Plaintiffs' Memorandum at 5, 8 (referencing the Amended Complaint's “removal” of Counts IV and V and stating the court should dismiss Defendant's motion as to Count IV as moot). The court therefore directs its consideration, in the order presented in Defendant's Reply (Dkt. 15), to Plaintiffs' Count II alleging negligence per se based on Plaintiffs' reference to § 225, and Count I (negligence) insofar as it has been amended to add a request for punitive damages, which remain the subjects of Defendant's motion, and Defendant's request to strike Plaintiffs' Exhibits 1-5.

         1. Plaintiffs' Count II ...

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