Opinion
18-CV-1527 (RA) (BCM)
02-05-2019
NATALIE YKENHOFF FLEMING, Plaintiff, v. DR. ULLA K. LAAKSO, MD, Defendant.
REPORT AND RECOMMENDATION TO THE HON. RONNIE ABRAMS
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Natalie Ykenhoff Fleming, who is representing herself, seeks damages from Dr. Ulla K. Laakso, M.D., a psychiatrist. Plaintiff's employer, Mount Sinai Hospital (Mount Sinai), referred plaintiff to Dr. Laakso for an assessment of her fitness to return to work. Plaintiff alleges that Dr. Laakso defamed her by falsely stating, in her treatment notes, that plaintiff had a history of depression, and by giving plaintiff "negative diagnoses." Now before the Court for report and recommendation is Dr. Laakso's motion to dismiss all of plaintiff's claims or, in the alternative for a more definite statement. (Dkt. No. 16.) Because plaintiff alleges no facts that would support either federal question or diversity jurisdiction, I respectfully recommend that this action be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3). Should the Court reach the merits, I recommend that the case be dismissed for failure to state a claim pursuant to Rule 12(b)(6), without leave to replead.
Plaintiff consistently spells defendant's name as "Laasko," and so captions all of her pleadings. See, e.g., Compl. (Dkt. No. 1) at ECF page 1. Defendant's attorneys use the same spelling in their filings. However, defendant's own documents give her last name as "Laakso," see, e.g., id. at ECF page 9. The State of New York agrees. See https://www.nydoctorprofile.com/dispatch (last visited Feb. 4, 2019).
I. BACKGROUND
A. The Black Powder
Plaintiff was employed as a Senior Entitlement Coordinator and Financial Counselor at Mount Sinai's Center for Transgender Medicine and Surgery (the Center). Compl. at ECF page 29. Beginning in January 2017, when three of plaintiff's hats went "mysteriously missing," only to reappear next to her desk, she suspected that her colleagues were plotting against her. Compl. at ECF page 24. Plaintiff's fears intensified when she found "a black dust/powdery substance" in her office, initially on her desk and then, on October 10, 2017, in her desk drawer, on top of her business cards. Id.; see also Supp. at ECF page 6. That is when plaintiff realized that her colleagues "must have been putting this powder on my desk all along." Compl. at ECF page 24.
Plaintiff's 7-page, hand-written Complaint is accompanied by 126 pages of attachments, including a typed, 4-page, first-person narrative (Compl. at ECF pages 24-27) and a collection of emails, medical records, employment forms, and other documents. The first 60 pages are filed as part of the Complaint itself, at Dkt. No. 1, and are cited herein as "Compl. at ECF page ___." The last 66 pages are filed as an addendum to the Complaint, at Dkt. No. 1-1, and are cited herein as "Compl. Add. at ECF page ___." I have considered all of the attachments to be part of plaintiff's Complaint for purposes of the pending motion. See Fed. R. Civ. P. 10(c); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)) ("the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference"). By Order dated April 9, 2018 (Dkt. No. 9), the District Judge deemed an additional 33 pages to be part of plaintiff's Complaint, including a typed, 27-page first-person narrative (the Supplement, id. at ECF pages 6-32) further describing the events underlying plaintiff's claims.
The October 10 incident was "very traumatizing" to plaintiff, who interpreted the black powder as "a message being sent that this was either racial since everything was in black or the dirt stood for the dirt over my casket and the box of business cards was my casket." Compl. at ECF page 25; see also Supp. at ECF page 8. Plaintiff suspected her direct supervisor, Zil Goldstein, as well as two other employees, Theresa Soto O'Donnell and Leslie Larue. Compl. at ECF page 25; Supp. at ECF page 8. Plaintiff sought redress from numerous Mount Sinai administrators, including its Chief Human Resources Officer. Compl. at ECF page 25-27, 28-29, 31, 33-34; Compl. Add. at ECF pages 26-27; Supp. at ECF pages 11-21. However, she continued to experience what she believed to be harassment by Goldstein, O'Donnell, and Larue. For example, on October 30, 2017, some of plaintiff's personal papers disappeared from a bag under her desk while she was meeting with Goldstein. Compl. at ECF page 26. Plaintiff asserts that Goldstein must have told another employee to "go into my bag and my desk while I was in the office." Id. A few weeks later, in mid-November, 2017, plaintiff had problems with her personal email accounts, which she also attributed to Goldstein. Plaintiff explains that her supervisor had "a way to spy on my computer at home such as spyware on my phone and home computer." Id. at ECF page 26.
On November 3, 2017, plaintiff went to the Mount Sinai Employee Health Service (EHS) complaining of dryness, cracks, and a burning sensation in her hands after "her desk drawer was tampered with or broken into" and black powder was "sprinkled over her business cards." Compl. Add. at ECF page 19. Plaintiff was advised to monitor her condition and cleared to return to work. Id. On November 15, 2017, plaintiff went to the Mount Sinai emergency room complaining of shortness of breath, dizziness, and headache, beginning after she was exposed to the black powder. Compl. at ECF page 44. She reported feeling "very anxious, nervous about the event," and had "flashbacks." Id. Plaintiff was given ibuprofen for her headache and discharged the same day, with instructions to follow up with her primary care physician. Id. at ECF page 50.
On November 22, 2017, matters came to a head when plaintiff "called the police on Zil [Goldstein] and Theresa [Soto O'Donnell]" because "I felt they were hacking into my accounts and I was feeling that they were stalking me." Compl. at ECF page 27; see also Supp. at ECF pages 22-24. The police "never took the report." Compl. at ECF page 27. Instead, "Zil made the cops call EMS to take me out of there as if I were a crazy person." Id.; but see Supp. at ECF page 23 (EMS "let me leave on my own"). On the way out, plaintiff "told Zil and Theresa in front of everyone in the office that they will both burn in hell for what they are doing to me." Supp. at ECF pages 23-24.
On November 27, 2017, when plaintiff returned to work, she was sent to EHS, where she was told that she "needed to see a psych doctor," Compl. at ECF page 27, and placed on medical leave. Id. at ECF page 36. While at EHS, plaintiff told physician Jason Pachman, M.D. about the black powder, explaining that it was placed in her desk drawer "deliberately to cause her to react and to appear 'crazy.'" Compl. Add. at ECF page 17. She also told Dr. Pachman, among other things, that her colleagues sent her "'black faced' emails" and attempted to break into her Facebook account. Id. According to Dr. Pachman, plaintiff "[d]emonstrated no insight into how someone else might find her claims about her supervisors to be paranoid and odd." Id. at ECF page 18. A few weeks later, after plaintiff's primary care physician refused to "clear [her] for return to work," Supp. at ECF page 25, plaintiff was told that she needed to be "cleared by a psychiatrist," id., and was referred to Dr. Laakso. Id. at ECF pages 26-28; see also Compl. at ECF pages 27, 36.
Plaintiff explains that her primary care physician "said it was not his place to get involved because this is something that happened at the workplace." Supp. at ECF page 25.
B. Dr. Laakso
Plaintiff saw Dr. Laakso on January 9, 2018. Compl. at ECF pages 9-10, 13-18; see also Compl. Add. at ECF page 15; Supp. at ECF page 28. At the appointment, plaintiff filled out a questionnaire in which she reported her medical history, listed all of her current medications, and stated that the "main reason" for her visit was "Trauma, Anxiety from some one putting an attempt with black powder on my life." Compl. at ECF page 14. Plaintiff also filled out a "mood evaluation" questionnaire in which she reported symptoms of irritability, racing thoughts, "[t]oo distractable," and "too active." Id. at ECF page 16. Asked if she had experienced "post partum blues" when she had her children, plaintiff said "yes, many women go through this," but denied any "mental health issues or substance abuse problems." Compl. at ECF page 27.
In her notes, Dr. Laakso wrote that plaintiff presented with "paranoid delusions about coworkers," and that her past psychiatric history included "rec[urrent] depression since 20s." Id. at ECF page 9. Under "diagnostic impression," Dr. Laakso wrote, "r/o [rule out] bipolar disorder F. 31.2" and "r/o delusional disorder F. 22." Id.; see also id. at ECF page 10 (same diagnoses). Dr. Laakso prescribed Aripiprazole (Abilify) and Clonazepam (Klonopin), and concluded that plaintiff was "unable to work." Id. at ECF page 10.
"F. 31.2" is the ICD-10-CM diagnostic code for "bipolar affective disorder, current episode manic with psychotic symptoms." See World Health Organization, International Statistical Classification of Diseases and Related Health Problems, 10th Revision, available at https://icd.who.int/browse10/2015/en (last visited Feb. 4, 2019). "F. 22" is the ICD-10-CM diagnostic code for "persistent delusional disorders." Id.
Also on January 9, 2018, plaintiff signed a form authorizing "any" physician having information concerning her physical or mental condition to provide that information to EHS "for the purpose of determining medical substantiation and the ability to return to work." Pl. Opp. (Dkt. No. 19) at ECF page 7. The following day, plaintiff's disability carrier, Liberty Mutual, asked Dr. Laakso for her office treatment notes and a "Functional Status Evaluation." Id. at 19-22. Dr. Laakso charged plaintiff $65 "to have a medical substantiation form" sent to Liberty Mutual, but failed to send the form, Compl. at ECF page 36, and in fact handed the paperwork back to plaintiff on January 23, 2018, at which point she "suggested another Psychiatrist to be seen by." Supp. at ECF page 30. Plaintiff later told Dr. Pachman that she did not wish to see Dr. Laakso again, "because I was tired of this back and forth and besides I did not like her anyway." Id.; see also Compl. Add. at ECF page 15 (Dr. Pachman, noting on January 23, 2018 that plaintiff "did not want to followup with Dr. Laakso further" and "was not given any note on return to work").
C. Plaintiff's Claims
Plaintiff sued Dr. Laakso on February 16, 2018, alleging that defendant's statement concerning her "past mental history" was "false." Compl. at ECF page 5 ("I never had psych problems in my past"); see also id. at ECF page 27 ("She wrote something about me having received some kind of mental treatment back in my 20's which is a blatant lie."); Supp. at ECF page 28 (Dr. Laakso "placed some lie on the evaluation form that stated in my 20's I had some mental issue which is a lie[.]"). In addition, plaintiff challenges Dr. Laakso's diagnostic impression, alleging that defendant "lied in her assessment," and "placed these negative diagnosis [sic] such as psychosis, Bipolar and paranoid and other things that are not true about me," Compl. at ECF page 6, because she was "working on behalf of the hospital to find me unstable and not fit for duty." Supp. at ECF page 28. Finally, plaintiff complains that Dr. Laakso "prescribed me hard psych drugs that made me feel very sick with all of my other severe health [i]ssues." Compl. at ECF page 6. Plaintiff seeks compensation for the $65 that she was charged for the disability paperwork, reimbursement for the expenses she incurred in travelling to Dr. Laakso's Manhattan office, and unspecified damages for her "[e]motional stress, aggravation and grief." Id.
In addition to this lawsuit, in which Dr. Laakso is the only defendant, plaintiff sued Mount Sinai and a number of her former coworkers in an action entitled Fleming v. Mount Sinai Hospital, No. 18-CV-1524 (RA) (S.D.N.Y.), asserting employment discrimination claims. A joint mediation was conducted, including all parties in both cases, resulting in a settlement of No. 18-CV-1524. See Order dated Oct. 10, 2018 (Dkt No. 22). However, the mediation was unsuccessful as to this action, id., which was then referred to the undersigned Magistrate Judge for general pretrial management and for report and recommendation on defendant's motion. (Dkt. No. 23.)
D. Defendant's Motion
On July 16, 2018, Dr. Laakso moved to dismiss plaintiff's claims against her pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for a more definite statement pursuant to Fed. R. Civ. P. 12(e). Defendant argues that the allegations in the Complaint and its attachments (many of which appear to relate to her grievances against her co-workers and others at Mount Sinai rather than her claims against Dr. Laakso) are difficult to decipher and in any event do not "give rise to any clear cause or causes of action" against Dr. Laakso. See Def. Mem. (Dkt. No. 17), at 6. In particular, defendant complains, plaintiff provides no information concerning what "specific allegedly false medical history Dr. Laakso took and actually expressed." Id. at 7.
In her opposition papers, filed on July 23, 2018, plaintiff clarifies that she holds Dr. Laakso responsible for "making false statements to my medical records and character deformation [sic] in efforts to assist Mount Sinai to not find me fit for duty." Pl. Opp., at ECF page 2. Specifically, plaintiff explains, "In [Dr. Laakso's] notes she stated that in my 20's I had a history of depression and delusional and paranoid factors which is not true, and I never told her that and there is no medical history or mental history in my past. I have never been treated for mental health issues ever in my entire life. So, making false statements about someone's medical history is illegal and should be dealt with." Id. at ECF page 5. Plaintiff adds that Dr. Laakso prescribed "hard medications" that she took "for a short time and stopped right away" because they "conflict[ed] with my other daily medications." Id. at ECF pages 5-6. Plaintiff theorizes that Dr. Laakso "did this to assist Mount Sinai to help keep me from returning to work" and concludes that "the whole thing is a cover up for someone assaulting me at the job by what they did." Id.
Plaintiff's opposition papers include a hand-written declaration (at ECF pages 2-3), a typed letter addressed to the District Judge (at ECF pages 4-6), and a number of exhibits, including various employment and medical records, some of which were previously attached to her complaint or other filings.
In her reply brief, Dr. Laakso presses the Rule 12(b)(6) prong of her motion, arguing that plaintiff's claims, as "clarifie[d] and narrow[ed]" by her opposition, fail to state a claim for defamation or for medical malpractice. See Def. Reply Mem. (Dkt. No. 20) at 2, 5-8.
II. DISCUSSION
A. Subject Matter Jurisdiction
Although defendant does not seek dismissal pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, see Def. Mem. at 4, the Court has "an independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte." Abdoulaye v. Cimaglia, 2018 WL 1890488, at *2 (S.D.N.Y. Mar. 30, 2018) (quoting Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006)). In this case, even after construing plaintiff's complaint "liberally," Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006), and interpreting it "to raise the strongest arguments that [it] suggests," id. (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), the Court cannot discern any basis for either federal question or diversity jurisdiction.
1. Federal Question
Federal question jurisdiction is governed by 28 U.S.C. § 1331, which states that the "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "A case 'aris[es] under' federal law in two ways: (1) 'when federal law creates the cause of action asserted'; or (2) 'where a claim finds its origins in state rather than federal law,' but 'the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Backer v. Cooperatieve Rabobank U.A., 338 F. Supp. 3d 222, 231 (S.D.N.Y. 2018) (quoting Gunn v. Minton, 568 U.S. 251, 257 (2013), and Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)).
When she filed this action, plaintiff checked a box to assert federal question jurisdiction, stating that her "civil human rights" were infringed when Dr. Laakso "made a false statement in my 1st time assessment evaluation." Compl. at ECF page 2. However, I cannot discern any federal constitutional or statutory question presented by her factual allegations. Plaintiff now characterizes her claim against Dr. Laakso as sounding in defamation. Pl. Opp. at ECF pages 1, 2, 5. Defamation is a state law tort which "does not suggest a violation of the United States Constitution or any federal laws by the defendant." Allen v. Mag-Ent, 2015 WL 8770078, at *2 (E.D.N.Y. Dec. 14, 2015) (finding no federal question jurisdiction). See also Truong v. Am. Bible Soc'y, 367 F. Supp. 2d 525, 527 (S.D.N.Y. 2005) (defamation "is not a federal question"), aff'd sub nom. Troung v. Am. Bible Soc'y, 171 F. App'x 898 (2d Cir. 2006).
Read generously, plaintiff's pleadings could also be construed as an effort to assert a claim for tortious interference with plaintiff's prospective business relationship with Mount Sinai, or for medical malpractice. However, tortious interference is also a state law tort, which ordinarily does not support federal question jurisdiction. See Highland Capital Mgmt. LP. v. Schneider, 198 F. App'x 41, 44 (2d Cir. 2006) ("we lack federal question jurisdiction over this case" because plaintiff could demonstrate the "wrongful" conduct element of the tort without establishing any violation of federal law); PCVST Mezzco 4, LLC v. Wachovia Bank Commercial Mortg. Tr. 2007-C30, 2015 WL 153048, at *9 (S.D.N.Y. Jan. 12, 2015) (remanding case to state court where only state law claims were asserted, including a claim for tortious interference); Neat-N-Tidy Co. v. Tradepower (Holdings) Ltd., 777 F. Supp. 1153, 1157 (S.D.N.Y. 1991) (dismissing for lack of subject matter jurisdiction because plaintiff's claims, including a claim for tortious interference, presented no federal question).
The same is true of medical malpractice. See Antonetti v. City of New York, 2014 WL 4161968, at *4 (E.D.N.Y. Aug. 19, 2014) (dismissing case pursuant to Rule 12(b)(1) where, "[a]t best, plaintiff's complaint raises . . . a medical malpractice claim against HHC," because "[t]he Court lacks jurisdiction over these state law claims"); Obunugafor v. Borchert, 2001 WL 1255929, at *2 (S.D.N.Y. Oct. 19, 2001) ("Plaintiff's claim for negligence or medical malpractice is a state claim and is neither created by federal law nor necessarily depends on the resolution of a substantial question of federal law."). Plaintiff's pleadings thus raise no federal question.
2. Diversity
Diversity jurisdiction is governed by 28 U.S.C. § 1332, which grants district courts "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332. To "properly invoke diversity subject matter jurisdiction," the plaintiff must "establish[ ] that the $75,000 minimum is met." Koso v. Haegele, 2018 WL 6531496, at *2-3 (E.D.N.Y. Dec. 11, 2018). Ordinarily, the amount in controversy "is measured as of the time that a complaint is filed" and "is established by the face of the complaint and the dollar amount actually claimed." Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 154-55 (D. Conn. 2016).
Plaintiff Fleming alleges that she resides in New Jersey, see Compl. at ECF page 3, making her a citizen of New Jersey for diversity purposes. See 28 U.S.C. §1332(a)(1). She alleges that defendant Laakso is a citizen of New York. Compl. at ECF page 3. The parties thus appear to be diverse. However, the only damages that plaintiff seeks are "compensation for the [$]65.00 [defendant] charged me for paperwork," unspecified expenses related to her local travel for the consultation, and similarly unspecified sums for her "emotional stress, aggravation, and grief." Compl. at ECF page 6. Thus, plaintiff "has not established that the $75,000 minimum is met." Koso, 2018 WL 6531496, at *2-3.
Even though plaintiff is proceeding pro se, it is her obligation to "establish subject matter jurisdiction." Koso, 2018 WL 6531496, at *2 (dismissing pro se complaint for lack of subject matter jurisdiction, without leave to amend); see also Uzoefune v. Am. Auto Shield, LLC, 2018 WL 5624149, at *2 (E.D.N.Y. Oct. 30, 2018) (dismissing pro se complaint for lack of subject matter jurisdiction, without leave to amend, where parties were diverse but "plaintiff seeks to recover only $15,500"). Moreover, a plaintiff's jurisdictional allegations, like her substantive allegations, must be plausible rather than "conclusory." See Wood v. Maguire Auto., LLC, 508 F. App'x 65, 65-66 (2d Cir. 2013) (affirming dismissal for lack of subject matter jurisdiction where "Wood's allegation in her complaint of $75,000 in controversy is conclusory and not entitled to a presumption of truth") (citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)); Weir v. Cenlar FSB, 2018 WL 3443173, at *12 (S.D.N.Y. July 17, 2018) ("the jurisdictional amount, like any other factual allegation, ought not to receive the presumption of truth unless it is supported by facts rendering it plausible") (collecting cases); Lapaglia, 155 F. Supp. 3d at 153-57 (dismissing pro se complaint where the bulk of plaintiff's $110,000 in claimed damages against an insurance company represented the compensation he allegedly would have earned had defendant paid his claim, which in turn would have paid for plaintiff's planned trip to North Korea, to work as a public relations propagandist for "the Dear Leader Kim Jong-Un").
Since plaintiff does not allege that she satisfies the jurisdictional minimum, and since her factual allegations would not plausibly support a claim for $75,000 or more, I recommend, respectfully, that this action be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and 12(h)(3), leaving plaintiff free to refile in state court should she wish to do so.
B. Failure to State a Claim
In the alternative, I recommend that defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) be granted.
1. Legal Standards
When faced with a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). This pleading standard "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 385 (S.D.N.Y. 2009) (internal quotation marks omitted). At a minimum, the plaintiff must give each defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Littlejohn v. City of New York, 795 F.3d 297, 309 (2d Cir. 2015) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 507 (2002)).
A pro se plaintiff, as noted above, is "'entitled to special solicitude.'" Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015). The policy of liberally construing pro se submissions "is driven by the understanding that '[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Triestman v. Federal Bureau of Prisons, 470 F.3d 471, at 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Consistent with that approach, factual allegations made in a pro se plaintiff's opposition papers may be considered "as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint." George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012); accord Scott v. Warden & Adm'r of Jurisdiction Correction Dep't & Med. Dep't, 2010 WL 3785252, at *4 (S.D.N.Y. Aug. 23, 2010).
However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F. Supp. 2d 345, 348 (S.D.N.Y. 2009) (internal quotation marks and citation omitted). Thus, even a pro se plaintiff "must state a plausible claim for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Moreover, the court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint," Fisk v. Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005), and "cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
1. Defamation
"A plaintiff claiming defamation in New York must allege 'that the defendant published to a third party a defamatory statement of fact that was false, was made with the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm, so long as the statement was not protected by privilege.'" Friedman v. Self Help Cmty. Servs., Inc., 647 F. App'x 44, 47 (2d Cir. 2016) (quoting Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir. 2011)). A plaintiff alleges defamation per se, and thus need not also allege special harm, if the false statement of fact (i) "charg[es] plaintiff with a serious crime," (ii) "tend[s] to injure [plaintiff] in his or her trade, business or profession," (iii) imputes to plaintiff a "loathsome disease," or (iv) imputes "unchastity to a woman.'" Thorsen v. Sons of Norway, 996 F. Supp. 2d 143, 165 (E.D.N.Y. 2014) (quoting Zherka v. Amicone, 634 F.3d 642, 645 n. 6 (2d Cir. 2011)). "Special harm," which must be pleaded if plaintiff has not alleged defamation per se, is economic harm that flows "directly from the injury to reputation caused by the defamation." Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489, 550 (S.D.N.Y. 2011) (quoting Matherson v. Marchello, 100 A.D.2d 233, 235, 473 N.Y.S.2d 998 (2d Dep't 1984)). The harm must be economic or pecuniary. Id. Neither emotional distress nor physical injury qualifies as special harm. See, e.g., Fruchter v. Sosse, 1996 WL 640896, at *9, n. 9 (S.D.N.Y.1996) (Injury to reputation and "great pain and mental anguish" are not "special damages").
Although plaintiff is a resident of New Jersey, all of her claims arise from the conduct of a New York physician, in New York, in connection with plaintiff's employment in New York. I therefore apply New York law to her common-law claims. See Albert v. Loksen, 239 F.3d 256, 264 (2d Cir. 2001) (applying New York law to claims of defamation and tortious inference brought by a New Jersey resident against his New York employer and several supervisors).
In this case, as discussed in more detail below, plaintiff has failed adequately to plead a false statement of fact, publication, or malice sufficient to overcome the qualified privilege that protects statements made by a psychiatrist, with her patient's authorization, to that patient's employer (or insurance carrier) concerning her psychological fitness to return to work.
a) False Statement of Fact
"Since falsity is a necessary element of a defamation cause of action and only 'facts' are capable of being proven false, 'it follows that only statements alleging facts can properly be the subject of a defamation action.'" Gross v. New York Times Co., 82 N.Y.2d 146, 153, 623 N.E.2d 1163, 1167 (1993) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 603 N.E.2d 930 (1992)). Plaintiff's pleadings, read generously, allege that Dr. Laakso defamed her in two ways: by falsely stating that that she had a history of mental illness, see, e.g., Compl. at ECF page 5 (defendant wrote "something about me having a past mental history which is false"), and by falsely assessing her current psychological condition. See id. at ECF page 6 (defendant "lied in her assessment" and "placed these negative diagnosis [sic] such as psychosis, Bipolar and paranoid and other things that are not true about me"). I address each in turn.
The allegation that Dr. Laakso misstated plaintiff's past mental health arguably charges defendant with making a false statement of historical fact. Moreover, the statement that plaintiff experienced "rec[urrent] depression since 20's," Compl. at ECF page 9, could only have been based on plaintiff's self-report, and plaintiff clearly alleges not only that she "never had psych problems in my past," id. at ECF page 5, but also that she "never told her that." Pl. Opp. at ECF page 5. Elsewhere in her pleadings, however, plaintiff acknowledges telling Dr. Laakso about her "post partum blues" when she had her three children. Compl. at ECF page 27.
Ordinarily, determining the truth or falsity of an allegedly defamatory statement "is not appropriate on a motion to dismiss under Rule 12(b)(6) because it takes the Court beyond the pleadings." McCusker v. Hibu PLC, 159 F. Supp. 3d 341, 350 (E.D.N.Y. 2016) (quoting Fanelle v. LoJack Corp., 79 F. Supp. 2d 558, 562 (E.D. Pa. 2000)). In this case, however, the admission is made within the pleadings themselves, such that the Court need not accept plaintiff's contradictory allegation that she "never told" Dr. Laakso about a history of depression. Fisk, 401 F. Supp. 2d at 368 (even in pro se cases, court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint").
Plaintiff also denies that she had substance abuse issues, see Compl. at ECF page 5, or that she received any "mental health treatment back in my 20's." Id. at ECF page 27. However, plaintiff does not identify any false statement by Dr. Laakso as to these topics. In her notes, Dr. Laakso wrote that plaintiff was "[d]epressed first time" at age 25 and that she experienced postpartum depression "3x." Compl. at ECF page 9. Insofar as the notes are decipherable, however, they do not appear to report any substance abuse issues or previous mental health treatment.
To the extent that plaintiff challenges Dr. Laakso's "assessment" of her condition, see Compl. at ECF pages 2,6, expressed as "r/o" bipolar disorder and delusional disorder (Compl. at ECF page 9), her defamation claim fails because the challenged statements are expressions of professional opinion rather than facts capable of being proven false. See Shenoy v. Kaleida Health, 158 A.D.3d 1323, 1324, 70 N.Y.S.3d 728 (3d Dep't 2018) (psychiatrist's written report as to plaintiff's "neuropsychological competence" could not be grounds for a libel claim because "the allegedly defamatory statements are expressions of pure opinion"); Roth v. Tuckman, 162 A.D.2d 941, 942, 558 N.Y.S.2d 264, 265 (3d Dep't 1990) (psychiatrist's "clinical assessment" that plaintiff had "a long-standing personality disorder" was a "constitutionally protected nonactionable expression of pure opinion"). Not only did Dr. Laakso expressly characterize her view as a "diagnostic impression," Compl. at ECF page 9; she used the abbreviation "r/o," which, as defendant notes, "stands for 'Rule Out' in medical lexicon," Def. Reply Mem. at 4, suggesting that Dr. Laakso believed further assessment was required before a firmer diagnosis (which would itself be an opinion) could be made. Dr. Laakso's diagnostic impression therefore cannot be the subject of a defamation claim.
In Senoy and Roth, as here, the allegedly defamatory statements were made by a psychiatrist to whom the plaintiff had been referred in connection with his or her employment. Plaintiff Shenoy (who was himself a physician) was required to undergo a neuropsychological assessment after one of his patients died. Shenoy, 158 A.D.3d at 1323, 70 N.Y.S.3d at 728. The trial court denied summary judgment to the defendant psychiatrist, but the Appellate Division reversed and dismissed the defamation claim as a matter of law. Id. Plaintiff Roth became depressed after sustaining physical injuries in an automobile accident, which in turn led her to "stop[ ] working for three months. She filed a claim with her insurance carrier, CNA, for lost earnings. As part of its investigation of the claim, CNA required plaintiff to visit defendant, a psychiatrist that it had chosen." Roth, 162 A.D.2d at 941, 558 N.Y.S.2d at 265. "Defendant subsequently interviewed plaintiff and her psychiatrist, reviewed the results of a psychological test completed by plaintiff and issued a report to CNA. In this report, defendant stated that 'the testing confirms the clinical assessment of an individual with a long-standing personality disorder.'" Id. The trial court granted summary judgment to the defendant psychiatrist on plaintiff's defamation claim and the Appellate Division affirmed, holding that the challenged statement was an "unmixed opinion" and therefore could not be actionable in defamation. Roth, 162 A.D.2d at 942, 558 N.Y.S.2d at 266.
There is no "rule out" modifier in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (known as the DSM-5). Rather, the "specifier 'provisional' can be used when there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough information is available to make a firm diagnosis." Am. Psychological Assoc., Diagnostic and Statistical Manual of Mental Disorders 23 (5th ed. 2013) However, according to at least one web-based service for mental health professionals, "[i]n practice clinicians use [the term 'rule out'] incorrectly when they are unwilling to commit to a particular diagnosis." See Psychopedia, "Rule-out" diagnoses (R/O), https://sites.google.com/a/iconopsych.com/ psychlopedia-com/rule-out (last visited Feb. 4, 2019).
b) Publication
"To satisfy the publication element of defamation, the defendant must have published a defamatory statement of fact to a third party. 'A defamatory writing is not published if it is read by no one but the one defamed.'" Medcalf v. Walsh, 938 F. Supp. 2d 478, 485 (S.D.N.Y. 2013) (quoting Ostrowe v. Lee, 256 N.Y. 36, 38, 175 N.E. 505 (N.Y.1931) (Cardozo, C.J.)) (citation omitted); Friedman, 647 F. App'x at 47 (quoting Chandok, 632 F.3d at 814) ("A plaintiff claiming defamation in New York must allege 'that the defendant published to a third party'").
Nowhere in plaintiff's voluminous submissions does she allege that any third party read any of the challenged statements in Dr. Laakso's notes, or any comparable statements (until plaintiff herself attached the notes to her Complaint some six weeks after they were written). To the contrary: plaintiff complains that Dr. Laakso failed to send her "medical substantiation form" to Liberty Mutual. Compl. at ECF page 36. Plaintiff has therefore failed to allege publication, which independently requires dismissal of the claim. See Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *6 (S.D.N.Y. Apr. 5, 2000) (dismissing defamation claim for failing to allege publication to third party); Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 411 (S.D.N.Y. 2009) (quoting Scholastic, Inc. v. Stouffer, 124 F. Supp. 2d 836, 849 (S.D.N.Y. 2000)) ("A pleading asserting a cause of action for defamation 'is only sufficient if it adequately identifies 'the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated.'").
c) Defamation Per Se and Special Harm
Plaintiff has not pleaded any "special harm." She identifies no pecuniary injury caused by the content of Dr. Laakso's notes. Instead, she alleges that she feels emotional distress "because the hospital has taken away my job" (which occurred before she saw Dr. Laakso) and because of Dr. Laakso's "negative diagnosis." See Compl. at ECF page 6. However, statements attributing mental illness to a plaintiff, when made in the employment context, can - at least in some cases - qualify as statements tending to injure plaintiff in her trade or business, and therefore constitute defamation per se, which does not require allegations of special harm. See, e.g., Recant v. New York Presbyterian Hosp., 25 Misc. 3d 1219(A), 901 N.Y.S.2d 910, 2009 WL 3490940, at *5 (N.Y. Sup. Ct. N.Y. Co. 2009) (statement that physician had "a long history of depression, manic depression, borderline personality disorder, and Percocet abuse" was actionable as defamation per se as tending to impugn physician in her profession); Musacchio v. Maida, 137 N.Y.S.2d 131, 132-33 (Sup. Ct. Kings Co. 1954) (statement suggesting that physician was "mentally unbalanced" "may hold him up to ridicule or contempt and is actionable without showing special damages when the language complained of is in reference to his profession"). Cf. Cain v. Esthetique, 182 F. Supp. 3d 54, 73-74 (S.D.N.Y. 2016) (allegedly slanderous statement concerning mental health of student in vocational education program was not defamation per se because student was not yet engaged in a "trade, business, or profession"), aff'd sub nom. Cain v. Atelier Esthetique Inst. of Esthetics Inc., 733 F. App'x 8 (2d Cir. 2018).
As a matter of public policy, there are forceful arguments against the expansion of the defamation per se doctrine to statements attributing any form of mental illness to persons in any or all trades, businesses, or professions. In this case, however, I conclude that plaintiff's failure to allege special harm is not an independent ground for the dismissal of her defamation claim.
According to the National Institutes of Health, nearly one in five American adults lives with a mental illness. See National Institute of Mental Health, Mental Illness: Statistics, https://www.nimh.nih.gov/health/statistics/mental-illness.shtml (last visited Feb. 4, 2019). The longstanding stigma associated with mental illness tends to inhibit those suffering from treatable conditions from seeking help, and thus constitutes - in the words of the Surgeon General - the "most formidable obstacle to future progress in the arena of mental illness and health." U.S. Dep't of Health & Human Services, Mental Health: A Report of the Surgeon General, at 3 (1999), available at https://profiles.nlm.nih.gov/ps/retrieve/ResourceMetadata/NNBBHS (last visited Feb. 4, 2019). That stigma may be exacerbated by court decisions that "tacitly accept[ ] the defamatory potential" of claims that an employee has a mental illness. Karen M. Markin, Still Crazy After All These Years: The Enduring Defamatory Power of Mental Disorder, 29 Law & Psychol. Rev. 155, 182 (2005) ("The belief that mental disorder damages a person's professional capability appeared to contribute to the continuing stigma associated with this label.").
d) Qualified Privilege
Because the absence of an applicable privilege is an element of the cause of action in New York, a plaintiff must affirmatively allege that the defamatory statement was not privileged. See, e.g., Egiazaryan v. Zalmayev, 2011 WL 6097136, at *5 (S.D.N.Y. Dec. 7, 2011) ("to survive the present motion, Egiazaryan must plausibly allege (1) a defamatory statement of fact, (2) regarding the plaintiff, (3) published to a third party, (4) that is false, (5) made with actual malice, (6) causing injury, and (7) not protected by privilege"); Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1, 5 (1st Dept. 1999) ("The elements are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se."). Plaintiff Fleming has not alleged that Dr. Laakso's statements were unprivileged, and for this reason as well has failed to state a claim for defamation.
Moreover, it is clear from plaintiff's factual allegations that if Dr. Laakso's statements were communicated to Mount Sinai, they were protected by the "qualified common interest privilege," which applies "when the defamatory statement is made between persons who share a common interest in the subject matter." Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 412 (S.D.N.Y. 2009). "Such statements are protected for 'the common convenience and welfare of society, that is, the recognition that on certain occasions the good that may be accomplished by permitting an individual to make a defamatory statement without fear of liability . . . outweighs the harm that may be done to the reputation of others.'" Qureshi v. St. Barnabas Hosp. Ctr., 430 F. Supp. 2d 279, 290-91 (S.D.N.Y. 2006) (quoting Garson v. Hendlin, 141 A.D.2d 55, 532 N.Y.S.2d 776, 780 (2d Dep't 1988)) (citation omitted).
Plaintiff saw Dr. Laakso for the express purpose of obtaining an assessment of whether she was "fit for duty," authorized her to communicate about plaintiff's mental health with Mount Sinai, and paid her $65 to communicate about the same subject with Liberty Mutual. Under these circumstances, any communications that Dr. Laakso did have with Mount Sinai or Liberty Mutual would fall comfortably within the common interest privilege. See, e.g., Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 169-70 (2d Cir. 2003) (school principal's statements to other staff members, to the effect that a school guidance counselor was "suicidal," were "clearly within the scope of the qualified privilege"); Fuji Photo, 669 F. Supp. 2d at 415 ("Fuji and its employees have a common interest in [plaintiff's] alleged employment-related misconduct"); Shenoy, 158 A.D.3d at 1323, 70 N.Y.S.3d at 728 (defendant psychiatrist's "written report and associated oral commentary" concerning plaintiff were protected by the common interest privilege); Antoine v. New York City Health & Hosps. Corp., 6 Misc. 3d 1013(A), 800 N.Y.S.2d 341, 2005 WL 159612, at *4 (Sup. Ct. N.Y. Co. Jan. 24, 2005) (statements of police officers and psychiatrists involved in plaintiff's involuntary hospital admission were made "upon a subject (i.e. plaintiff's mental state) on which the officers and doctors had legal and societal interests to speak, and the statements were made to persons with corresponding interests"). Moreover, plaintiff authorized all of her physicians, including Dr. Laakso, to "give any and all information" about her physical or mental condition to Mount Sinai's EHS "for the purposes of determining medical substantiation and the ability to return to work." Pl. Opp. at ECF page 7.
To overcome the qualified privilege, a defamation plaintiff must plead and prove either common law or constitutional "malice," Shenoy, 158 A.D.3d at 1323, 70 N.Y.S.3d at 728; that is, "spite or ill will" (which must be "the one and only cause for the publication", Fuji, 669 F. Supp. 2d at 412 (quoting Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 98 (2d Cir. 2000))) or knowledge of the probable falsity of the statement. Fuji, 669 F. Supp. 2d at 412. Under either branch of the analysis, "[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the qualified privilege." Fuji 669 F. Supp. 2d at 412 (quoting Golden v. Stiso, 279 A.D.2d 607, 608, 720 N.Y.S.2d 164 (2d Dep't 2001)).
As noted above, plaintiff suggests, at one point in her pleadings, that Dr. Laakso had no factual basis for her notation that plaintiff had experienced recurrent depression. See Pl. Opp. at ECF page 5 ("I never told her that.") However, plaintiff did tell Laakso about her "post partum blues," Compl. at ECF page 27, and offers no other facts that would suggest that Dr. Laakso knew her statements were false. Plaintiff has therefore failed to allege constitutional malice. She has also failed to allege common law malice, because she offers no factual support for her conclusory charge that Dr. Laakso "lied to assist Mount Sinai with finding me unfit for duty." Compl. at ECF Page 6. This allegation, which appears to be based on nothing more than "surmise, conjecture, and suspicion," is "insufficient to defeat the qualified privilege." Fuji, 669 F. Supp. 2d at 412.
2. Tortious Interference with Prospective Business Relations
In order to state a claim for tortious interference with business relations, "a plaintiff must adequately allege that: '(1) the plaintiff had business relations with a third party; (2) the defendant interfered with those business relations; (3) the defendant acted for a wrongful purpose or used dishonest, unfair, or improper means; and (4) the defendant's acts injured the relationship.'" Glob. Packaging Servs., LLC v. Glob. Printing & Packaging, 248 F. Supp. 3d 487, 494 (S.D.N.Y. 2017) (quoting Valley Lane Indus. Co. v. Victoria's Secret Direct Brand Mgmt., L.L.C., 455 F. App'x 102, 105 (2d Cir. 2012)).
Here, although plaintiff had a business relationship with Mount Sinai, which she wished to improve by establishing that she was fit to return to work, she has not stated facts sufficient to support any of the other elements of the tort. Absent allegations that Dr. Laakso communicated any defamatory statements to Mount Sinai, plaintiff cannot establish that defendant interfered with the business relationship or that her acts "injured the relationship." Glob. Packaging Servs., 248 F. Supp. 3d at 494. Moreover, plaintiff does not "plausibly allege that the defendant[ ] acted with the sole purpose of inflicting intentional harm on [plaintiff]," Medcalf, 938 F. Supp. 2d at 490, nor that she employed any "dishonest, unfair, or improper means" beyond the making of defamatory statements in her treatment notes. Thus, plaintiff's potential tortious interference claim extends no further than - and fails with - her claim of defamation. Id. at 491 (dismissing tortious interference claim along with defamation claim where no other improper means were alleged); see also Shenoy, 158 A.D.3d at 1324, 70 N.Y.S.3d at 728 (same).
3. Medical Malpractice
Defendant suggests that plaintiff's Complaint - in particular, the allegations concerning the medications that Dr. Laakso prescribed - could be read to assert a medical malpractice claim. See Def. Mem. at 7; Def. Reply Mem. at 7-8. "[T]he requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage." Isaac v. City of New York, 2018 WL 1322196, at *7 (S.D.N.Y. Mar. 13, 2018) (quoting Melvin v. Cty. of Westchester, 2016 WL 1254394, at *19 (S.D.N.Y. Mar. 29, 2016)). Plaintiff must "specify the injuries he suffered and allege sufficient facts to demonstrate how his injuries were caused by a deviation from the standard of care." Id.
Plaintiff alleges that Dr. Laakso "prescribed hard psych drugs," which made her "feel very sick with all of my other issues." Compl. at ECF page 6. In her opposition papers, she elaborates somewhat, stating that defendant prescribed those medications "without a full mental/psych history from the past" and "never found out much about my medical history." Pl. Opp. at ECF pages 2-3; see also id. at ECF page 6 ("She never asked for my medical history or anything, just gave me medication."). Plaintiff further alleges that she stopped taking the medications prescribed by Dr. Laakso "right away because of how they made me feel and conflict with my other daily medications." Id. at ECF page 5-6.
Nowhere in her papers does plaintiff expressly allege that Dr. Laakso's conduct deviated from an accepted standard of care. See Chavis, 618 F.3d at 170 (a court "cannot invent factual allegations that [the plaintiff] has not pled"). Moreover, while she implies that the appropriate standard required Dr. Laakso to take her medical history and identify her other medications before prescribing additional drugs, any claim based on a failure to take those steps would be undercut by the documents attached to the Complaint, which include a questionnaire in which plaintiff listed all of her then-current medications and stated that she had a history of diabetes, high blood pressure, heart trouble, lung trouble, and kidney or urine trouble. Compl. at ECF page 14-15. As noted above, the Court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint." Fisk, 401 F. Supp. 2d at 368.
Additionally, plaintiff's allegations as to damages are wholly conclusory. The unadorned allegation that plaintiff felt sick after taking the medication is not sufficiently specific to support a cause of action for medical malpractice. Isaac, 2018 WL 1322196, at *7 (dismissing pro se medical malpractice claim where plaintiff failed to "specify what injuries he allegedly suffered as a result of the alleged medical malpractice.")
4. Leave to Replead
Because plaintiff is proceeding pro se, her claims should not be dismissed on the merits "without granting leave to replead at least once," so long as a liberal reading of her complaint "gives any indication that a valid claim might be stated." Barnes v. United States, 204 F. App'x 918, 919 (2d Cir. 2006) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). However, the Court need not grant leave to amend where it would be futile. Caddick v. Pers. Co. I LLC, 2018 WL 3222520, at *8 n.5 (S.D.N.Y. June 29, 2018).
In this case, given the multiple deficiencies in plaintiff's defamation claim and her potential tortious interference claim - notwithstanding the voluminous pleadings that she has already filed - I conclude that it would be futile to grant leave to replead either of those torts. Even if plaintiff could allege previously-unmentioned facts showing that the challenged statements were published, Dr. Laakso's diagnostic impressions would remain "expressions of pure opinion," Shenoy, 158 A.D.3d at 1324, 70 N.Y.S.3d 728, and her other statements, even if capable of being proven false, would be protected by the common interest privilege. Id., 158 A.D.3d at 1323, 70 N.Y.S.3d 728. Similarly, while it is possible that plaintiff could better articulate a medical malpractice claim founded upon Dr. Laakso's failure to take her history before prescribing two medications that made her (briefly) "feel very sick," the documents attached to her current pleading, including the medical history forms she filled out, give no "indication that a valid claim might be stated." Barnes, 204 F. App'x at 919.
III. CONCLUSION
For the reasons stated above, I respectfully recommend that plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(1) and 12(h)(3), for lack of subject matter jurisdiction, or - in the alternative - that her claims be DISMISSED WITH PREJUDICE, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief could be granted.
The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to the plaintiff. Dated: New York, New York
February 5, 2019
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Ronnie Abrams at 40 Foley Square, New York, New York 10007, and to the chambers of the assigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Abrams. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).