United States District Court, W.D. New York
COLLEEN HOPKINS, KATHRYN DiSALVO, DOUGLAS MORRIS, Executor of the Estate of Margaret Morris, Plaintiffs,
JOHN S. BOOTH, III, Defendant.
ZACHER, P.C., JULES ZACHER, BURGETT & ROBBINS Attorneys
GOLDBERG SEGALLA LLP JOSEPH J. WELTER, JASON BOTTICELLI, of
Counsel Attorneys for Defendant
DECISION AND ORDER
G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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”),  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 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.
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
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.”) (underlining
added). 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
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,
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).
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. 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
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
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.
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.
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.
Plaintiffs' Count II ...