Summary
affirming dismissal of § 1985 claim on the merits
Summary of this case from Robinson v. AllstateOpinion
CA 03-00190
June 13, 2003.
Appeal from an order of Supreme Court, Erie County (NeMoyer, J.), entered October 16, 2002, which, inter alia, granted the motions of defendants Joseph Maddi, Olivia Blackwell, Thomas A. Hassenfratz, Joseph Serghany, and Sheehan Memorial Hospital and dismissed the complaint against them.
ZDARSKY, SAWICKI AGOSTINELLI, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PLAINTIFF-APPELLANT.
DAMON MOREY LLP, BUFFALO (JUDY S. HERNANDEZ OF COUNSEL), FOR DEFENDANTS-RESPONDENTS JOSEPH MADDI, OLIVIA BLACKWELL, AND SHEEHAN MEMORIAL HOSPITAL.
FELDMAN, KIEFFER HERMAN, LLP, BUFFALO (MICHELE K. SNYDER OF COUNSEL), FOR DEFENDANT-RESPONDENT THOMAS A. HASSENFRATZ.
WEBSTER SZANYI LLP, BUFFALO (DAVID P. MARCUS OF COUNSEL), FOR DEFENDANT-RESPONDENT JOSEPH SERGHANY.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted the motions of defendants Thomas A. Hassenfratz and Joseph Serghany for summary judgment dismissing the complaint against them, and the motion of defendants Joseph Maddi, Olivia Blackwell and Sheehan Memorial Hospital (Sheehan) to dismiss the complaint pursuant to CPLR 3211 (a)(7) or, alternatively, for summary judgement dismissing the complaint against them. The individual defendants, physicians employed by Sheehan, established that their conduct is not "fairly attributable" to the state ( American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50), and "the fact that [Sheehan] [is] regulated by the state and receive[s] substantial public funding is, without more, woefully insufficient to impute state action to the conduct of the [moving] defendants" ( Alcena v. Raine, 692 F. Supp. 261, 266). Thus, the moving defendants established that they were not acting under color of state law for purposes of the cause of action alleging a violation of plaintiff's civil rights under 42 U.S.C. § 1983, and plaintiff failed to raise a triable issue of fact. Further, the "conclusory, vague and general allegations of a conspiracy to deprive [plaintiff] of constitutional rights" are insufficient to support plaintiff's claim under 42 U.S.C. § 1985(3) ( Kubik v. New York State Dept. of Social Servs., 244 A.D.2d 606, 610). With respect to the third cause of action, alleging defamation against Maddi, we conclude that Maddi, Blackwell and Sheehan submitted proof establishing that the allegedly defamatory statement was not made, and plaintiff failed to raise a triable issue of fact ( see Schwartz v. Society of N.Y. Hosp., 232 A.D.2d 212, 213). We have considered plaintiff's remaining contentions and conclude that they are lacking in merit.