Opinion
20-CV-01786 (VEC) (VF)
06-13-2023
YAHKIMA GOMEZ-KADAWID, Plaintiff, v. DR. JESSICA LEE, DR. LENA ALSABBAN, and DR. SARAH LEAVITT, Defendants.
Mr. Yahkima Gomez-Kadawid c/o Jamie Hunter Defendants' counsel
Mr. Yahkima Gomez-Kadawid c/o Jamie Hunter Defendants' counsel
REPORT & RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE VALERIE E. CAPRONI
On February 9, 2020, Plaintiff Yahkima Gomez-Kadawid, originally proceeding pro se and in forma pauperis, and later represented by pro bono counsel for purposes of opposing the instant motion, commenced this action asserting a claim under 42 U.S.C. § 1983 against Defendants Dr. Jessica Lee, Dr. Lena Alsabban, and Dr. Sarah Leavitt (collectively, “Defendants”) for violation of his constitutional right to refuse medical treatment. See ECF No. 2. Plaintiff further asserts state-law claims for battery against all Defendants and medical malpractice against Defendants Lee and Alsabban. Id. Plaintiff's claims arise out of events that allegedly occurred at the Bellevue Hospital Center (“Bellevue”) while Plaintiff was in the custody of the City of New York as a pretrial detainee at Rikers Island (“Rikers”). Plaintiff alleges that, after having been transported to Bellevue from Rikers in May 2017, Defendants performed a dental surgical procedure on him without his consent, causing him pain and suffering. Currently before the Court is Defendants' motion to dismiss Plaintiff's state-law claims for battery and medical malpractice, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.For the reasons that follow, I recommend that Defendants' motion be GRANTED.
As explained in detail below, the Court previously construed Plaintiff's pleadings to include these state-law causes of action.
BACKGROUND
The following facts, alleged in Plaintiff's Amended Complaint, are accepted as true for purposes of this motion and construed in the light most favorable to the plaintiff. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
On May 22, 2017, Plaintiff was transferred from Rikers to Bellevue after “complain[ing] of a wisdom tooth partly coming out, for which he requested painkillers.” See Am. Compl. at 3, ECF No. 65. While at Bellevue, Plaintiff was examined by Defendants Drs. Lee and Alsabban, both dentists, who informed Plaintiff that his tooth “needed to be extracted as it was impacted and the source of the pain.” Id. After being informed of “what might happen if no treatment was received” and that “the surgical procedure may not have the results that were expected,” Plaintiff decided “he did not want to have his tooth extracted” because he believed the risks of surgery “were too high.” Id.
Plaintiff was then informed by an anesthesiologist, Dr. Mastery, that he would be giving Plaintiff medication to “calm down.” Id. Plaintiff informed Drs. Mastery, Lee, and Alsabban that he did not want invasive surgery performed on him, and Dr. Mastery “refused” to administer anesthesia to Plaintiff. Id. Dr. Leavitt, another anesthesiologist, took over for Dr. Mastery and proceeded to administer anesthesia to Plaintiff. Id. Dr. Lee then performed the extraction, assisted by Dr. Alsabban. Id. Plaintiff alleges that he did not have “enough time to discuss his condition and treatment with the defendant health care providers and that none of his questions were answered to his satisfaction.” Id. Plaintiff further alleges that he “did not agree” to have this invasive surgery performed on him, and that it was done without his verbal or written consent. Id. at 3-4.
Plaintiff claims that the procedure resulted in “permanent pain and suffering.” Id. at 4. More specifically, Plaintiff claims that the surgery caused damage to “teeth, soft tissue and nerves [in] that between 5-6 teeth were subsequently chipped and cracked during the invasive extraction” and that “a specula was [stuck] in his gums from the operation sit[e].” Id. As a result, Plaintiff claims that his bottom left row of teeth is extremely sensitive to heat and cold and that even soft food is painful to eat. Id. Plaintiff further claims that he experiences continuous bleeding, severe swelling and infection, and has permanent loss of sensation in his lips, gums, teeth, tongue and chin. Id.
Shortly after Plaintiff left Bellevue and returned to Rikers, Plaintiff was admitted to Kirby Psychiatric Hospital (“Kirby”) because he was suffering from severe paranoia, depression, and acute anxiety from his experience at Bellevue. Id. Plaintiff claims that he was “so distraught with paranoia, depression, and anxiety that he remained out of touch with any sense of mental or physical wellbeing.” Id. At Kirby, Plaintiff received “very strong” antipsychotic and anxiety medications. Id. Plaintiff alleges that he filed a “Court of Claim petition” within 90 days of the surgery and while at Kirby but that he does not have the index number of his filing due to the loss of his personal property. Id. at 6.
Plaintiff states that he suffers from mental-health problems that are “considered a Level 1S (Sever[e]).” See Am. Compl. at 3.
Plaintiff's complaint does not provide a precise sense of timing for how long he suffered from these conditions and remained “out of touch” or how long he was admitted at Kirby, but his counsel represents that he was discharged from Kirby after approximately three months. See ECF No. 101 at 3. Because the surgery occurred on May 22, 2017, and Plaintiff alleges he was transferred back to Rikers in 2017, it follows that Plaintiff must have left Kirby sometime between August and December 2017.
After leaving Kirby, Plaintiff was transferred out of General Population at Rikers and admitted to the “mental health observation” unit at Rikers (also referred to by Plaintiff as the “psychiatric ward”), where he remained “for the remainder of 2017” until April 30, 2019. Id. at 4-5. While there, Plaintiff filed a grievance with the “grievance clerk” at Rikers, but claims “there was no answer.” Id. at 5. Plaintiff states that he “informed the head grievance officer” about his “incident,” who informed Plaintiff that “the doctors from Bellevue Hospital ha[ve] no connection to [the Department of Corrections and Community Supervision (“DOCCS”)] in any way and [that] DOCCS ha[s] no authority to investigate any outside sources, including even if they were doctors in Rikers, let alone outside doctors.” Id. at 6. Plaintiff alleges that he was prevented from timely filing this action “due to Rikers administrative negligence, misconduct, and destruction of personal property.” Id. Plaintiff also claims that the psychiatric medication he was given at Rikers caused him to be unable to comprehend and focus on “the initial procedures” for filing suit. Id.
II. Procedural History
Plaintiff filed the instant action on February 9, 2020. See ECF No. 2. On January 4, 2021, the Honorable Debra C. Freeman entered an order denying without prejudice Plaintiff's application for the Court to appoint pro bono counsel to represent him. See ECF No. 17. On March 3, 2021, Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.On June 3, 2021, Judge Freeman entered an order granting Plaintiff's renewed application for the Court to appoint pro bono counsel and directing the Clerk of Court to attempt to locate pro bono counsel for the limited purpose “of assisting Plaintiff in (1) responding to the pending motion to dismiss, and (2) conducting discovery, should the case move forward.” See ECF No. 38. Plaintiff continued to proceed in a pro se capacity in responding to Defendants' motion to dismiss. See ECF No. 47.
Under the “prison mailbox rule,” a pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, even though Plaintiff's Complaint was not entered on the Docket until February 28, 2020, the Complaint itself is dated February 9, 2020. See ECF No. 2. The Court thus deems the Complaint to have been filed as of February 9, 2020. See Hardy v. Conway, 162 Fed.Appx. 61, 62 (2d Cir. 2006) (Summary Order) (noting that, “in the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing”) (citing cases).
The motion was originally filed by Defendants Alsabban and Leavitt on April 16, 2021. See ECF No. 29. On July 14, 2021, Defendant Lee moved to join the motion. See ECF No. 49. This request was granted by Magistrate Judge Freeman on July 21, 2021. See ECF No. 52.
On February 3, 2022, Judge Freeman issued a Report and Recommendation (the “February 3 R&R”) recommending that Defendants' motion be denied without prejudice. See ECF No. 58. In the February 3 R&R, Judge Freeman construed Plaintiff's Complaint as asserting a state-law claim of battery as against all Defendants and a state-law claim of medical malpractice as against Defendants Lee and Alsabban. Id. at 23-24. With respect to the § 1983 claim, Judge Freeman denied Defendants' motion to dismiss, finding that Plaintiff had “adequately pleaded a substantive due-process violation” based on Plaintiff's right to refuse medical treatment as protected by the Due Process Clause of the 14th Amendment and Defendants' alleged deprivation of that liberty interest. Id. at 14-22. As to the state-law claims, Judge Freeman recommended finding that they are (1) time-barred, and (2) insufficient because Plaintiff failed to allege that he filed a Notice of Claim with Defendants' employer, NYC Health + Hospitals (formerly known as the New York City Health & Hospitals Corporation) (“H+H”). See id. at 23-26.
Judge Freeman recommended that Plaintiff's amended complaint should identify the individuals who performed the surgery on him, name them as defendants, and allege facts regarding their personal involvement in the claimed violation of his constitutional rights. See February 3 R&R at 22. Judge Freeman further recommended that Defendants' counsel be directed to assist Plaintiff in identifying the individuals who performed the surgery on him. See id. at 27. Defendants' instant motion does not seek dismissal of Plaintiff's amended § 1983 claim.
However, Judge Freeman recommended affording Plaintiff “leave to amend his Complaint to remedy the deficiencies in his federal claims against defendants Lee and Alsabban” and “an opportunity to replead his state-law claims for battery and medical malpractice, so as to allege that he timely filed the requisite notice of claim and to plead facts capable of giving rise to a plausible inference that he is entitled to relief from the governing statutes of limitations.” Id. at 26-27. Judge Freeman further specified that any amendments by Plaintiff with respect to his state-law claims should “plead that he timely served the required notices of claim on H+H, and . . . provide any reasons why the applicable statutes of limitations for those state-law claims should be equitably tolled or why Defendants should be equitably estopped from relying on the statutes of limitations.” Id. at 27. On February 24, 2022, the Honorable Valerie E. Caproni adopted Judge Freeman's February 3 R&R in full and provided Plaintiff an opportunity to amend his complaint in accordance with Judge Freeman's recommendations. See ECF No. 60.
On March 22, 2022, Plaintiff filed his Amended Complaint. See ECF No. 65. As an exhibit to his Amended Complaint, Plaintiff includes a motion for permission to file a late claim and accompanying affidavit, directed to the New York Court of Claims and dated March 22, 2022. Id., Ex. A. Defendants filed their Answers on April 18, 2022. See ECF Nos. 67-69. On October 12, 2022, Defendants filed the instant motion to dismiss Plaintiff's state-law claims, along with supporting documents. See ECF Nos. 90-92. On December 11, 2022, Susan J. Weiswasser, Esq. appeared as pro bono counsel for Plaintiff. See ECF Nos. 96 (Notice of Appearance), 97 (order memorializing limited scope of Ms. Weisswasser's pro bono representation). Plaintiff submitted his counseled opposition to Defendants' motion to dismiss on January 17, 2023, and the motion was fully briefed on March 30, 2023. See ECF Nos. 101, 103.
LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgement on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (quoting Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020)). Thus, to survive a Rule 12(c) motion, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Hayden, 594 F.3d at 160). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
In making this assessment, the Court accepts the plaintiff's pleading as true and draws all reasonable inferences in his favor. Lively, 6 F.4th at 301 (citing Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). Moreover, a court is “obligated to construe a pro se complaint liberally,” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret pro se submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (citation, internal quotation marks, and emphasis omitted). Judgment on the pleadings “is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial.” Lively, 6 F.4th at 301 (citation and internal quotation marks omitted); see also Richards v. Mitcheff 696 F.3d 635, 637 (7th Cir. 2012) (dismissal under Rule 12(c) is appropriate for self-defeating complaints-i.e., complaints “whose allegations show that there is an airtight defense”).
DISCUSSION
Defendants assert that Plaintiff's state-law claims are time-barred and that the Amended Complaint does not correct this deficiency as it fails to demonstrate any entitlement to equitable tolling of the applicable limitations period. See Defs.' Br. at 1, 5-6, ECF No. 92. Defendants further assert that Plaintiff failed to satisfy a condition precedent to filing suit because he did not serve a timely Notice of Claim on H+H. Id. at 7-8. Judge Freeman previously denied Defendants' motion to dismiss Plaintiff's §1983 substantive due process claim, and Defendants do not raise any arguments in support of dismissing that claim here. For the reasons that follow, I recommend dismissal of Plaintiff's state-law claims, because they are time-barred and procedurally deficient.
I. Plaintiff's state-law claims are time-barred and Plaintiff is not entitled to equitable tolling of those claims.
Plaintiff's Amended Complaint, as construed by this Court, asserts state-laws claims of battery and medical malpractice, which Defendants argue are time-barred. “New York statutes of limitations apply to [a] plaintiff['s] supplemental state law tort claims.” Wiwa v. Royal Dutch Petroleum Co., No. 96-CV-8386 (KMW), 2002 WL 319887, at *20 (S.D.N.Y. Feb. 28, 2002). Under New York law, both battery and medical malpractice claims against H+H employees must be commenced within one year and 90 days from the date when the claims accrued. See N.Y. Gen. Mun. Law. §§ 50-i(1), 50-k(6) (prescribing limitations period for personal injury actions against municipal employees based on negligence or wrongful acts); N.Y. Gen. Constr. Law § 37-a (defining “[p]ersonal injury” to include “battery”); N.Y. Unconsol. Law § 7401(2), (6) (applying the N.Y. Gen. Mun. Law., including the prescribed limitations periods, to H+H); see also Roundtree v. NYC, No. 19-CV-2475 (JMF), 2021 WL 1667193, at *4 (S.D.N.Y. Apr. 28, 2021) (noting that for claims of battery and malpractice, a plaintiff “ha[s] ninety days from the date his claims accrued to file a notice of claim, and one year after that to commence an action against . . . H+H, and its employees”) (citing cases). Moreover, under New York law, both battery and medical malpractice claims accrue on the date of the conduct at issue. See Quiles v. City of New York, No. 01-CV-10934 (LTS) (THK), 2003 WL 21961008, at *6 (S.D.N.Y. Aug. 13, 2003) (battery); Nykorchuck v. Henriques, 78 N.Y.2d 255, 258 (1991) (medical malpractice).
The surgical procedure involving the extraction of Plaintiff's wisdom tooth-which is the focus of Plaintiff's complaint and the basis for his battery and medical malpractice claims-is alleged to have been performed on May 22, 2017. See Am. Compl. At 3. One year and 90 days from May 22, 2017, is August 20, 2018. However, Plaintiff did not file his complaint until February 9, 2020. See ECF No. 2. Plaintiff's battery and medical malpractice claims are therefore time-barred, as he did not file his complaint until February 9, 2020, one year, five months, and 20 days after the limitations period expired. And while “the statute of limitations is an affirmative defense for which a defendant bears the burden of proof,” Roundtree, 2021 WL 1667193, at *3, it is undisputed that Plaintiff did not timely file his complaint in this action, see Pl.'s Br. at 6. Plaintiff thus may only proceed with his state-law claims if he can demonstrate his entitlement to equitable tolling of the applicable limitations period or that Defendants should be estopped from relying on the limitations bar. See February 3 R&R at 26.
Courts also apply the relevant state law in determining whether, and to what extent, the statute of limitations should be tolled. See Casey v. Merck & Co., 653 F.3d 95, 100 (2d Cir. 2011); Lessord v. Gen. Elec. Co., 258 F.Supp.2d 209, 212 (W.D.N.Y. 2002) (federal courts exercising supplemental jurisdiction apply state tolling rules to state-law claims). Equitable tolling is an “extraordinary remedy” under New York law, Pulver v. Dougherty, 58 A.D.3d 978, 979 (3d Dep't 2009), and is available only when a plaintiff can demonstrate that he acted diligently and “that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling or equitable estoppel claim ‘have ceased to be operational.'” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (citation omitted); Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 796 (3d Dep't 2005) (citation omitted).
“Under New York law, the doctrines of equitable tolling or equitable estoppel ‘may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.'” Abbas, 480 F.3d at 642 (citation omitted). For instance, “New York tolls the statute of limitations both (i) where the defendant conceals from the plaintiff the fact that he has a cause of action, and (ii) where the plaintiff is aware of his cause of action, but the defendant induces him to forego suit until after the period of limitations has expired.” Camacho v. Nassau Boces Sch. Dist., No. 21-CV-1523 (DRH) (JMW), 2022 WL 256506, at *7 (E.D.N.Y. Jan. 27, 2022) (citation and internal quotation marks omitted); see also Roeder v. J.P. Morgan Chase & Co., 523 F.Supp.3d 601, 616 (S.D.N.Y. 2021) (finding equitable estoppel “estops the defendant/wrongdoer who has taken affirmative steps to prevent a plaintiff from bringing a claim within the limitations period from arguing that the plaintiff is at fault and should be precluded from bringing a claim for failure to bring it within that limitations period”) (citation and internal quotation marks omitted), aff'd, No. 21-552, 2022 WL 211702 (2d Cir. Jan. 25, 2022).
Plaintiff states that he “was prevented from filing [an] action” within the applicable limitations period “due to Riker's administrative negligence, misconduct, and destruction of personal property.” See Am. Compl. at 6. As an initial matter, these allegations are conclusory and lack any specificity. While the Court must “draw the most favorable inferences that [a plaintiff's] complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Here, Plaintiff does not explain what misconduct took place, and thus he cannot establish how or why the conduct of individuals at Rikers would entitle him to equitable tolling. Even interpreting Plaintiff's allegations liberally and applying the more flexible standard in determining the sufficiency of a pro se complaint, see Amaker v. Gerbing, No. 17-CV-03520 (PMH), 2022 WL 463312, at *3 (S.D.N.Y. Feb. 15, 2022), Plaintiff's bare assertions alone are insufficient to meet the minimal pleading requirements. See Chavis, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) (internal quotation marks omitted).
In any case, Plaintiff does not allege that Defendants induced him by way of fraud, misrepresentations, or deception to forego filing this suit within the limitation period. Nor does he allege that Defendants concealed the existence of the instant causes of action. Plaintiff was aware of the facts that gave rise to his claims-the allegedly non-consensual surgery-from the date the surgery took place. Given the absence of any allegations that any of the Defendants took any affirmative steps to prevent Plaintiff from timely filing suit, equitable estoppel does not apply. See Willensky v. Lederman, No. 13-CV-7026 (KMK), 2015 WL 327843, at *6 (S.D.N.Y. Jan. 23, 2015) (finding equitable estoppel inapplicable and explaining that the doctrine “applies where it would be unjust to allow a defendant to assert a statute of limitations defense because the defendant's affirmative wrongdoing . . . produced the long delay between the accrual of the cause of action and the institution of the legal proceeding”) (citation and internal quotation marks omitted).
Plaintiff also argues that he is entitled to equitable tolling because the trauma he suffered from the allegedly non-consensual surgery “exacerbated his already fragile mental health.” See Pl.'s Br. at 2, 8. Plaintiff claims that as a result of this trauma, he was admitted to Kirby, suffering from “deepened depression, anxiety, and paranoia.” Id.; Am. Compl. at 3-4. After approximately three months at Kirby, Plaintiff was transferred back to Rikers and “admitted to [the] mental health observation section,” where he remained until April 30, 2019. See Pl.'s Br. at 3; Am. Compl. at 4-5. Plaintiff alleges that during this time, he “was so distraught with paranoia, depression, and anxiety that he remained out of touch with any sense of mental and physical well-being,” and that the psychiatric medications given to him at Rikers rendered Plaintiff “unable to comprehend and focus on the initial procedures due to his mental state.” See Am. Compl. at 4, 6. Plaintiff's counsel asserts that Plaintiff's “serious mental illness” and his medications have “made performing even simple tasks difficult.” See Pl.'s Br. at 6-7. Plaintiff's counsel thus argues that these are sufficiently “extraordinary” circumstances to entitle Plaintiff to equitable tolling. Id. at 6-8.
However, “New York law does not unequivocally apply a per se toll for psychiatric hospitalization.” Joseph S. v. Hogan, 561 F.Supp.2d 280, 315 (E.D.N.Y. 2008) (citing Vallen v. Carrol, No. 02-CV-5666 (PKC), 2005 WL 2296620, at *3-5 (S.D.N.Y. Sept. 20, 2005)). Under New York Law, CPLR § 208 tolls the statute of limitations only for individuals suffering from “insanity at the time the cause of action accrues.” N.Y. C.P.L.R. § 208. The New York Court of Appeals has instructed that § 208 be “narrowly interpreted,” McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 548 (1982), and courts have consistently held that a “very high level of incapacity must be demonstrated before a plaintiff may successfully invoke Section 208,” Keitt v. City of NY, No. 09-CV-5663 (PKC) (DF), 2010 WL 3466175, at *7 (S.D.N.Y. Aug. 9, 2010) (noting that courts have refused to toll the statute of limitations even where a plaintiff suffers from “dementia and [a] psychotic disorder”) (citation omitted), report and recommendation adopted, 2010 WL 3466079 (S.D.N.Y. Sept. 2, 2010). “This standard has been strictly applied by courts in this Circuit.” Hedgepeth v. Runyon, No. 96-CV-1161 (SAS), 1997 WL 759438, at *4 (S.D.N.Y. Dec. 10, 1997).
“Apathy, depression, posttraumatic neurosis, psychological trauma and repression therefrom, or mental illness alone are insufficient to invoke the tolling provisions of § 208; the mental disability must be severe and incapacitating.” McEachin v. City of New York, No. 03-CV-6421 (CBA), 2007 WL 952065, at *4 (E.D.N.Y. 2007) (citation and internal quotation marks omitted); see Swartz v. Berkshire Life Ins. Co., No. 99-CV-9462 (JGK), 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28, 2000) (“Difficulty in functioning is not sufficient to establish insanity for purposes of § 208; rather, the plaintiff must be totally unable to function as a result of a ‘severe and incapacitating' disability.”) (citation omitted). “Thus, an allegation that plaintiff was mentally ill at the time of the alleged [conduct] is not enough to trigger § 208.” Murphy v. West, 533 F.Supp.2d 312, 316 (W.D.N.Y. 2008). Moreover, “the plaintiff must also satisfy the ‘continuous disability' requirement, which requires a showing that ‘the disability of insanity was continuous during the relevant period.'” Basher v. Madonna Realty Corp., No. 01-CV-5 116 (DLI) (VVP), 2007 WL 174130, at *3 (E.D.N.Y. Jan. 19, 2007) (quoting Carter v. Doe, No. 05-CV-8432 (NRB), 2006 WL 2109461, at *3 (S.D.N.Y. Jul. 26, 2006)). Under this continuity requirement, a lucid interval of any significant duration stops the toll. Id.
Plaintiff's alleged conditions of paranoia, depression, and acute anxiety are insufficient to establish that he was suffering from “insanity” or a disability that was “so severe and incapacitating” that it rendered Plaintiff “totally unable to function” during the relevant period, as is required for tolling under CPLR § 208. See Swartz, 2000 WL 1448627, at *5. As numerous other courts have found, the presence of these mental illnesses and others (as well as the mental state caused by medications used to treat such conditions) does not rise to a level sufficient to satisfy CPLR § 208. See La Russo v. St. George's Univ. Sch. of Med., 747 F.3d 90, 93-94, 99101 (2d Cir. 2014) (affirming district court's determination that § 208 did not apply to Plaintiff alleging to have been “suffering from mental illness,” “disoriented [and] sickly,” and “incoherent” from drugs) (internal quotation marks omitted); Callahan v. Image Bank, 184 F.Supp.2d 362, 363-64 (S.D.N.Y. 2002) (holding that allegations that plaintiff was “unable to work or care for herself,” “experienced severe side effects from medication,” “experienced a period of hospitalization . . . arising from . . . depression,” and “suffers from suicidal ideation” were insufficient to satisfy the standard for tolling under § 208); Burgos v. City of New York, 294 A.D.2d 177, 178 (1st Dep't 2002) (CPLR § 208 not satisfied where plaintiff alleged that he suffered from “dementia and psychotic disorder” “due to multiple medical conditions that . . . existed for many years and [were] permanent”); Pauling v. Secretary of Dep't of Interior, 960 F.Supp. 793, 804 n.6 (S.D.N.Y. 1997) (tolling not warranted on the basis of a “major depressive episode”); Sanders v. Rosen, 159 Misc.2d 563, 577 (N.Y. Sup. Ct. 1993) (“The Court of Appeals [has] made it quite plain that apathy, depression and neurosis are not so disabling as to toll the Statute of Limitations.”); Dumas v. Agency for Child Dev.-New York City Head Start, 569 F.Supp. 831, 833 (S.D.N.Y. 1983) (holding that diagnosis of “schizophrenia [and] paranoi[a]” did not result in tolling under CPLR § 208, as plaintiff's disability “was not of the severe and incapacitating nature contemplated by the tolling statute,” and noting that “[t]he statute speaks in terms of insanity, not merely mental illness”).
Moreover, Plaintiff maintaining the wherewithal to file a “Court of Claim petition” while at Kirby and a grievance upon his return to Rikers belies any assertion that his mental condition during that time rose to the level necessary to trigger tolling under CPLR § 208. In other words, his preparation of the “Court of Claim petition,” which as alleged was submitted within the 90-day period to file a notice of claim, evinces that he was not sufficiently incapacitated to warrant tolling. See, e.g., Hedgepeth, 1997 WL 759438, at *4-5 (“[T]he fact that Plaintiff sought disability retirement benefits in the intervening months between the date of discharge [from a mental health clinic] and the date of [Equal Employment Opportunity] notification belies any notion that Plaintiff was sufficiently incapacitated to warrant tolling.”); Pauling, 960 F.Supp. at 804 n.6 (S.D.N.Y. 1997) (fact that plaintiff pursued claim for workers' compensation during relevant time period contradicted his claim of mental incapacity). Thus, Plaintiff's allegations are insufficient to satisfy “the very high standard required to invoke tolling” pursuant to CPLR § 208. See La Russo, 747 F.3d at 99-101. And even if Plaintiff's condition was so severe and incapacitating to satisfy CPLR § 208, and toll the limitations period for the three months he was at Kirby, the limitations period for each claim would have expired on November 20, 2018-still over 14 months prior to Plaintiff filing his complaint on February 9, 2020. For these reasons, I recommend dismissing Plaintiff's state-law claims for battery and medical malpractice because they are time-barred.
Without any tolling, the one year and 90-day limitations period would have expired on August 20, 2018. Tolling the limitations period for three months would have extended it to November 20, 2018.
II. Plaintiff's state-law claims are deficient because Plaintiff failed to allege that he timely filed a Notice of Claim on H+H.
Defendants alternatively assert that Plaintiff has failed to plead that he served a timely notice of claim on H+H. Defs.' Br. at 7-8. Under New York law, filing a notice of claim “within ninety days after the claim arises” is “a condition precedent to the commencement of an action” against H+H and its employees. See N.Y. Gen. Mun. Law. § 50-e(1)(a); see also Pastorello v. City of New York, No. 95-CV-0470 (CSH), 2001 WL 1543808, at *8 (S.D.N.Y. Dec. 4, 2001) (explaining that H+H employees may not be sued for actions arising out of the scope of their employment “unless a notice of claim has been filed with [H+H] within ninety days after the claim arises”) (citations omitted). While “[t]he notice-of-claim requirement does not apply to federal claims brought under Section 1983[,] . . . state notice-of-claim statutes [do] apply to state-law claims” brought in federal court. Mejia v. N.Y.C. Health & Hosps. Corp., No. 16-CV-9706 (GHW), 2018 WL 3442977, at *14 (S.D.N.Y. July 17, 2018) (internal quotation marks and citation omitted). Thus, a plaintiff must plead that, with respect to his state-law claims, he has complied with the notice-of-claim requirement. See Hardy v. N.Y.C. Heath & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (“Under New York law, a notice of claim is a condition precedent to bringing personal injury actions against municipal corporations such as [H+H].”).
It is undisputed that at the relevant time, Defendants were H+H employees, and that Plaintiff is suing them for actions taken within the scope of their employment at H+H. Plaintiff alleges that he filed a “Court of Claim petition” within the 90-day period, while he was at Kirby. See Am. Compl. at 6. Plaintiff's counsel clarifies that Plaintiff “prepared what he thought was a Notice of Claim,” which described the events that had occurred and memorialized Plaintiff's intention to file a lawsuit against Defendants, and represents that Plaintiff “asked his wife to serve the notice on New York City” and that his wife subsequently “serv[ed] it on an entity she believed to be the agent” for H+H. See Pl.'s Br. at 1, 3, 8. Plaintiff does not have any record of this filing, as his personal property was allegedly lost due to “either negligent or deliberate acts” that occurred as Plaintiff was transferred from one facility to another. See Am. Compl. at 6; see also Pl.'s Br. at 3-4, 8. Moreover, Plaintiff alleges that he filed a grievance against Defendants with the “grievance clerk” at Rikers and informed the “head grievance officer” there “about [the] incident.” See Am. Compl. at 5-6; see also Pl.'s Br. at 1-2. Plaintiff claims these actions “cur[e] any defect in notice of claim,” see Am. Compl. at 5, and constitute “sufficient notice with New York City,” see Pl.'s Br. at 9.
None of these allegations constitute valid service on H+H of a Notice of Claim and thus do not satisfy the requirement to timely serve such notice. Plaintiff's counsel does not argue that he served a Notice of Claim on the appropriate agent for H+H, only that Plaintiff's notice “sufficed” because it “provided the requisite information to notify Defendants that they would be sued” and because Plaintiff's “mental and physical illnesses created extraordinary complications.” See Pl.'s Br. at 8. But Notice of Claim requirements “are construed strictly by New York state courts,” Hardy, 164 F.3d a 793-94 (citation omitted), and must be served on the correct agency. See Badgett v. New York Health & Hosps. Corp., 227 A.D.2d 127, 128 (1st Dep't 1996) (“Service . . . of the notice of claim upon the City of New York, rather than upon [H+H], does not constitute compliance with the notice of claim requirements for service upon [H+H].”); Kroin v. City of New York, 210 A.D.2d 95, 96 (1st Dep't 1994) (“[T]he mere fact” that both the City and H+H are represented by the Corporation Counsel “does not provide the necessary nexus to equate service of a notice of claim on one with service on the other.”) (alteration in original) (quoting Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 493 (2d Dep't 1990)).
Plaintiff is not entitled to tolling of the deadline for filing the Notice of Claim for the same reasons discussed with regards to tolling the statute of limitations. See supra pp. 10-15.
Plaintiff does not allege that he served H+H with a Notice of Claim, and he has no evidence to support his allegation that he filed a “Court of Claim petition” within 90 days while at Kirby. See Hardy, 164 F.3d at 794 (noting that “[t]he purpose of the notice-of-claim requirement is to afford the municipality an adequate opportunity to investigate the claim in a timely and efficient manner” and that “[f]ailure to comply with th[is] requirement[] ordinarily requires a dismissal for failure to state a cause of action”) (citation and internal quotation marks omitted); McTerrell v. New York City Health & Hosps. Corp., No. 19-CV-4469 (PAE) (SDA), 2020 WL 1503194, at *4 (S.D.N.Y. Mar. 30, 2020) (“Federal courts lack jurisdiction to hear complaints from plaintiffs who have failed to file a timely notice of claim, or to grant permission to file a late notice. Because this defect is not curable, the Court dismisses th[e] claim with prejudice.”) (citation omitted). Moreover, Plaintiff's counsel's representation that Plaintiff had his wife serve a notice on the City is not contained in the Amended Complaint and thus cannot be considered in ruling on a motion to dismiss. See Fadem v. Ford Motor Co., 352 F.Supp.2d 501, 516 (S.D.N.Y. 2005) (“It is long-standing precedent in this circuit that parties cannot amend their pleadings through issues raised solely in their briefs.”), aff'd, 157 Fed.Appx. 398 (2d Cir. 2005); In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 432 (S.D.N.Y. 2001) (“The complaint cannot, of course, be amended by the briefs in opposition to a motion to dismiss.”); Lazaro v. Good Samaritan Hosp., 54 F.Supp.2d 180, 184 (S.D.N.Y. 1999) (“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”) (citation and internal quotation marks omitted). Regardless, even if counsel's representation were considered, the notice filed by Plaintiff's wife is insufficient because it was served on the City and not H+H. See Badgett, 227 A.D.2d at 128 (explaining that service of notice of claim on City, rather than H+H, did not satisfy the notice of claim requirements). And as for Plaintiff's “grievance” that he filed at Rikers, Plaintiff was informed by the grievance officer at Rikers that DOCCS had no connection with H+H and Bellevue, and thus Plaintiff was on notice that this grievance was not filed with H+H.
Counsel for Plaintiff asserts that “[s]hould the Court find that the notice was inadequate, Plaintiff requests the opportunity to move the Supreme Court of the State of New York for leave to file a late notice of claim.” See Pl.'s Br. at 9. Attached to Plaintiff's Amended Complaint is Motion for Permission to File a Late Claim, dated March 22, 2022, and directed to the New York Court of Claims. See Am. Compl., Ex. A. To the extent Plaintiff is requesting a stay of the case to allow him an opportunity to file a motion in state court for leave to file a late notice of claim, I recommend denying the request. Even if the Notice of Claim defect were cured, Plaintiff's statelaw claims are still time-barred. See supra pp. 8-15; see also, e.g., Wood v. Town of E. Hampton, 08-CV-4197, 2010 WL 3924847, at *27 (E.D.N.Y. Sept. 30, 2010) (granting defendant's motion to dismiss plaintiff's state-law claims for failure to timely serve a notice of claim, rather than reserve decision “during the pendency of his application to serve a late notice of claim in New York Supreme Court”); Yennard v. Herkimer BOCES, No. 16-CV-0556 (GTS) (ATB), 2017 WL 11317859, at *15 (N.D.N.Y. Mar. 27, 2017) (finding “[t]he correct remedy . . . is dismissal and not . . . to reserve decision pending the outcome of the state court's decision”) (alteration in original) (citation and internal quotation marks omitted); Kirschner v. Klemons, 225 F.3d 227, 239 (2d Cir. 2000) (“It lies within the district court's discretion whether to exercise pendent jurisdiction and if so, whether to stay the state-law claims pending completion of the state proceedings.”). And to the extent Plaintiff is requesting that the Court permit him leave to file a late notice of claim, the Court lacks jurisdiction to decide such an application. See Costabile v. County of Westchester, 485 F.Supp.2d 424, 431 (S.D.N.Y. 2007) (federal court cannot authorize the filing of a late notice of claim).
While the N.Y. Gen. Mun. Law. provides that “[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim,” it also provides that “[a]ll applications under this section [must] be made to the [state] supreme court or to the county court.” See N.Y. Gen. Mun. Law. § 50-(e)(5), (7); see also Brown v. Massena Mem'l, No. 99-CV-1729, 2000 WL 381941, at *7 (N.D.N.Y. Apr. 11, 2000) (“[T]his court is without power to grant [plaintiff] leave to file a late notice of claim as such applications must be made to a state supreme or county court.”); Covington v. Westchester County Jail, No. 96-CV-7551, 1997 WL 580697, at *5 (S.D.N.Y. Sept. 18, 1997) (“[T]his court has no authority to consider the application to file a late notice of claim.”); Russell Pipe & Foundry Co. v. City of New York, No. 94-CV-8642, 1997 WL 80601, at *15 (S.D.N.Y. Feb. 25, 1997) (“The law is clear that a federal court lacks jurisdiction to entertain a motion to file a late notice of claim, as General Municipal Law § 50-e(7) requires that all such applications ‘shall be made to the supreme court or county court.'”).
In short, Plaintiff does not allege that he filed a valid notice of claim with H+H with respect to any of the state-law claims he seeks to advance here-a condition precedent to bringing suit-let alone that he did so within 90 days from the date his claims arose. For this reason, Plaintiff's pleading is deficient. Accordingly, I recommend that Plaintiff's state-law claims for battery and medical malpractice be dismissed for this reason as well.
Finally, I recommend declining to grant Plaintiff further leave to amend his state-law claims. Although leave to amend a complaint should be freely given “when justice so requires,” Fed.R.Civ.P. 15(a)(2), it is “within the sound discretion of the district court to grant or deny leave to amend,” Ahmed v. GEO USA LLC, No. 14-CV-7486 (JMF), 2015 WL 1408895, at *5 (S.D.N.Y. Mar. 27, 2015) (internal quotation marks omitted). Here, the Court already granted Plaintiff leave to amend his complaint once, but the amendment failed to cure the procedural deficiencies identified by the February 3 R&R. See Transeo S.A.R.L. v. Bessemer Venture Partners VI L.P., 936 F.Supp.2d 376, 415 (S.D.N.Y. 2013) (“Plaintiff's failure to fix deficiencies in its previous pleadings is alone sufficient ground to deny leave to amend sua sponte.”) (citing cases). And based on the nature of these deficiencies, further amendment would be futile because Plaintiff's state-law claims are barred by the statute of limitations and he has not demonstrated entitlement to equitable tolling of the applicable limitations period. See, e.g., Roundtree, 2021 WL 1667193, at *3-4, 6. As noted, Plaintiff may still proceed with his § 1983 claim.
CONCLUSION
For these reasons, I respectfully recommend that Defendants' motion be GRANTED.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Valerie E. Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).