Opinion
97 Civ. 2243 (DAB) (DFE)
May 26, 2000
OPINION AND ORDER
Plaintiff Carmen Toribio instituted this "lead paint" action on behalf of herself and her infant daughter Kalis, in Supreme Court, New York County, against the City of New York. The complaint (Index Number 103802/97) also named the apartment building's owner (Elsie Realty Corp.) and managing agent (Michael Moore) as defendants, but they were never served with process. The City removed the case to our Court, and it was assigned to Judge Batts. On 10/14/97, the plaintiffs and the City consented to proceed before me pursuant to 28 U.S.C. § 636 (c).
On 5/15/98, the plaintiffs filed an Amended Complaint which was mostly the same except it added an additional defendant — Max Veras, who allegedly was appointed by a state court as administrator of the building. Mr. Veras has not appeared and has not consented to proceed before me. On 10/29/98, plaintiffs served a default judgment motion against Mr. Veras, returnable before Judge Batts on 11/20/98.
On 11/30/98, the City moved before me to dismiss for failure to state a claim, and in the alternative for summary judgment. Plaintiffs filed opposing papers on 1/26/99. The City filed its reply on 2/1/99.
In a 4/6/99 Memorandum and Order, I directed plaintiffs to answer nine questions. The answers were given in a 4/19/99 response by John E. Fitzgerald, Esq. and a 5/7/99 affidavit of Carmen Toribio. These show that the law firm of Fitzgerald Fitzgerald, P.C. has been retained by Carmen Toribio ever since 9/22/94 — only 13 days after the first City employee visited plaintiffs' apartment, and 14 days before the City tested the apartment for lead. See Pls. 1/21/99 Mem. at p. 4.
In letters dated 7/6/99 and 5/9/00, the City commented on two recent decisions issued by Judge Trager and Judge Kram contrary to some of the City's arguments. In the 5/9/00 letter, the City urged that I reject the reasoning of those two cases or, in the alternative, that I permit the City to seek an interlocutory appeal.
For the reasons set forth below, I dismiss the federal causes of action asserted against the City, and I remand the remaining causes of action against the City to the court in which the plaintiffs originally sued, namely Supreme Court, New York County.
The Amended Complaint seeks damages from the City for leadpaint poisoning suffered by Kalis and alleges eight causes of action. The First Cause of Action, "Violation of Federal Law," cites the Lead-based Paint Poisoning and Prevention Act ( 42 U.S.C. § 4822 et seq.), the federal Community Development Block Grant Program ( 42 U.S.C. § 5301) and several federal regulations. The Third Cause of Action, "Violation of Federal Rights," cites 42 U.S.C. § 1983. The other causes of action do not arise under federal law — they are the Second, "Failure to Enforce Local Laws Against the City of New York" including New York City Administrative Code § 27-2013(h); the Fourth, "Negligence;" the Fifth, "Breach of Contract and Implied Warranty of Habitability;" the Sixth, "Nuisance and Absolute Nuisance;" the Seventh, "Negligent or Intentional Infliction of Mental Distress;" and the Eighth, which alleges that "the City owed a special duty to plaintiffs."
The City moves to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), or alternatively, for summary judgment under Fed.R.Civ. p. 56.
The federal claims
The City argues that the federal claims fail because plaintiffs cannot prove that any federal funding was used by the City in connection with their apartment, which they rented from a private landlord. (City's 11/30/98 Mem. at 8-10.) Plaintiffs' Memorandum of Law says:
Plaintiffs concede that at trial they will not be able to prove the expenditure of any federal funds at any of the buildings involved herein. Accordingly, the City's motion to dismiss plaintiffs' federal claims should be granted.
(P1's 1/21/99 Mem. at 2, n. 1.) In view of this concession, I hereby dismiss the First and Third Causes of Action.
The state claims
Having dismissed the two federal claims, a federal court has discretion to retain the state claims, or dismiss them, or remand them to state court if, as happened here, they came to our Court via removal. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618-20 (1988); 28 U.S.C. § 1367 (c) and § 1441(c).
The City urges our Court to retain jurisdiction and dismiss the state claims. The City says:
This Court must now decide whether it will retain ancillary [jurisdiction] over plaintiffs' remaining claims and hear the City's motion to dismiss them. Because these claims can be disposed of factually, fairness and judicial economy dictate that they be dismissed now rather than remanded to state court.
(City's 2/1/99 Reply Mem. at 1.) The City concedes that
when pendent claims turn on unresolved questions of state law, they should be remanded to state court when the federal claims supplying original jurisdiction are dismissed.
(Id. at 2.) Nevertheless, it argues
Here, however, plaintiffs' remaining claims hinge on a factual issue which must be resolved in the City's favor: there is no credible evidence that Kalis Toribio continued to be poisoned after DOH inspected plaintiffs' home, or that [her] subsequent blood lead levels would have been any different had DOH acted differently.
(Id.) The City contends that plaintiffs' reliance on their expert, Dr. John F. Rosen, is futile because his opinion is speculative and cannot withstand scrutiny under the standards propounded in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). Therefore, in the City's view, plaintiffs' allegations are unsupported and it is a simple matter to decide that there is no issue for trial. The plaintiffs defend Dr. Rosen, but they do not address the issue of whether our Court should retain the state-law claims or remand them to the state court where the plaintiffs initially sued the City.
I disagree with the City's "judicial economy" argument. Even if it turns out that the admissibility of Dr. Rosen's opinion is a dispositive issue, and that it is proper to decide that issue under the Federal Rules of Evidence, it would require a significant commitment of our Court's judicial resources to conduct a Daubert evaluation. See e.g. Dombrowski v. Gould Electronics, Inc., 1998 WL 919624 (M.D.Pa. 1998) (precluding the same Dr. Rosen from testifying to opinions on a slightly different aspect of lead poisoning).
More importantly, I find that principles of federalism and comity counsel our Court to decline to retain jurisdiction over this particular case. Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998), stressed the importance of leaving state-law questions to the state courts:
Where a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state's interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts.
In Seabrook, the Second Circuit rejected the exercise of supplemental jurisdiction, even though "all the parties are united in urging this Court to uphold . . . jurisdiction, even as they dispute the merits of the outcome." 153 F.2d at 73. The case at bar concerns "the state's interest in the administration of its government" and of the government of its major city. The state-law claims involve common-law torts and provisions in the City's Codes; in each of these claims, the dispute is essentially about the extent of the City's duty. I note that, in another lead paint case, Santiago v. Hernandez and the City of New York, 53 F. Supp.2d 264, 273-74 (E.D.N.Y. 1999), Judge Block declined to exercise supplemental jurisdiction over the state-law claims. I reach the same conclusion, and I remand to the state court.
Some other federal judges have been willing to retain pendent jurisdiction in lead paint cases, but their decisions on the state-law issues have differed; this suggests novelty and complexity. See. e.g., Valdez v. MGS Realty and The City of New York, 2000 WL 511024 (S.D.N.Y. April 28, 2000) (Kram, J.) (visits from City Public Health Advisor may have sufficed to trigger exceptions to municipal immunity); Valencia v. Lee and The City of New York, 55 F. Supp.2d 12, 130-31 (E.D.N.Y. 1999) (Trager, J.) (by inspecting plaintiffs' apartment and advising plaintiffs of lead poisoning prevention techniques without alerting the plaintiffs of the dangers, the City may have created a "special relationship" between itself and the injured plaintiff); Lindsay v. New York City Housing Authority, 1999 WL 104599 at *9 (E.D.N.Y. 1999) (Gleeson, J.) (N.Y.C. Health Code § 173.13(d)(2) does not create private right of action for individual plaintiffs and one may not be fairly implied. "Holding otherwise would `subject municipalities to open-ended liability of enormous proportions . . . [that would] discourage municipalities from undertaking activities to promote the general welfare.'"); Roman v. Morace and N.Y.C. Housing Authority, 1997 WL 7778444 at *13 (S.D.N.Y. 1997) (Cote, J.) (N.Y.C. Admin. Code § 27-2013(h) imposes abatement duty only upon the dwelling's owner)
The law is also unsettled in the New York state courts.Davis v. Owens and City of New York, 686 N.Y.S.2d 31 (1st Dep't 1999) (summary judgment granted; N.Y.C. Health Code § 173.13(d)(2) does not give rise to special duty), leave denied, 694 N.Y.S.2d 633 (1999); Curry v. Davis and Rental Assistance Corp. of Buffalo, 661 N.Y.S.2d 359 (4th Dep't 1997) (where RACB inspector marked "Pass" for each room in the Lead Paint category, and gave plaintiff brochures about lead paint poisoning, "there is a question of fact regarding RACB's negligence based upon RACB's assumption of a duty to inspect and a duty to warn plaintiff about the hazards of lead paint"); Bargy v. Sienkiewicz and County of Albany, 615 N.Y.S.2d 520 (3d Dep't 1994) (County may have exceeded general duty of inspection and abatement and voluntarily assumed special duty, where it recommended removal of infants during abatements, and then negligently advised moving back in); Ubiera v. Housing Now Company, Inc and City of New York, Index No. 14471/97 (Sup.Ct. Bronx County May 12, 2000) (summary judgment granted; neither N.Y.C. Admin. Code § 27-2013 (h) nor N.Y.C. Health Code § 173.13 create a duty, and Department of Health did not assume a special duty by its inspection and counseling activities; distinguishing Bargy);Cooper v. County of Rensselaer, 697 N.Y.S.2d 486 (Sup.Ct. Rensselaer County 1999) (summary judgment granted; County employees did not promise to protect plaintiff from further lead exposure, no evidence that the County assumed positive direction and control); Cardona v. Willoughby Avenue Corp. and N.Y.C. Housing Authority, 697 N.Y.S.2d 231 (Sup.Ct. Kings County 1999) (summary judgment granted; no proof that NYCHA went beyond usual scope of a Public Housing Authority; no proof of special relationship); Missouri v. Boyce and N.Y.C. Housing Authority, 696 N.Y.S.2d 649 (Sup.Ct. Kings County 1999) (summary judgment granted; no facts showing that NYCHA in any way exceeded general duty or took steps beyond those required of it pursuant to statutory mandates; distinguishing Bargy).
Our case involves private housing. A central issue is whether the City assumed a special duty to residents of private housing by the way it carried out its general duties of inspection and abatement of lead paint. This is a state-law question, and it has not yet been addressed on the merits by the highest court of New York. I note that a judge of that court denied leave to appeal in a case heavily relied on by the plaintiffs, Thomas v. City of New York, 580 N.Y.S.2d 1008 (1st Dept. 1992), leave denied, 587 N.Y.S.2d 905 (1992). It is entirely possible that any ruling by our Court "may be soon displaced by a state adjudication." Seabrook, 153 F.3d at 73, citing Railroad Commission v. Pullman Co., 312 U.S. 496, 500 (1941).
I direct that the First and Third Causes of Action against the City be dismissed with prejudice. I direct that the remaining causes of action against the City be remanded to the court in which the plaintiffs originally sued, namely Supreme Court, New York County. See Carnegie-Mellon University, 108 S.Ct. at 618-20.
Pursuant to 28 U.S.C. § 1447 (c), I "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." I decline to require any such payment. The City properly removed the case, because the complaint in state court asserted violations of federal law. Almost two years after the removal, the plaintiffs conceded that their federal claims should be dismissed.
As noted at pages 1-2 of this Opinion, plaintiffs served a default judgment motion against Max Veras, and that motion remains pending before Judge Batts. I will forward a copy of this Opinion and Order to Judge Batts.
I direct the Clerk of our Court to mail a certified copy of this Opinion and Order to the Clerk of the Supreme Court, New York County. The state court may thereupon proceed with the case filed under Index Number 103802/97.
DOUGLAS F. EATON United tates Magistrate Judge
Dated: New York, New York May 26, 2000