La Russo v. St. George's University School of Medicine , 747 F.3d 90 ( 2014 )

13-1665-cv
La Russo v. St. George’s University School of Medicine
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
Heard: November 5, 2013 Decided: March 4, 2014
Docket No. 13-1665-cv
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MARIA LA RUSSO, as attorney in fact for
A. Matthew De Lucia,
Plaintiff-Appellant,
v.
ST. GEORGE’S UNIVERSITY SCHOOL OF MEDICINE,
JOHN DOES, 1-5, (as employees, agents, and/or
servants of St. George’s and/or as independent
contractors), JANE DOES, 1-5, (as employees,
agents, and/or servants of St. George’s and/or
as independent contractors),
Defendants-Appellees.
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Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.
Appeal from the March 28, 2013, judgment of the United
States District Court for the Southern District of New York
Edgardo Ramos, District Judge), rejecting a challenge to removal
jurisdiction and dismissing as time-barred a complaint alleging
medical malpractice.
Judgment affirmed.
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Joshua S. Moskovitz, Beldock Levine &
Hoffman LLP, New York, NY (Myron
Beldock, Beldock Levine & Hoffman
LLP, New York, NY, on the brief),
for Appellant.
Gerald W. Sawczyn, Proskauer Rose LLP,
New York, NY (Charles S. Sims,
Proskauer Rose LLP, New York, NY, on
the brief), for Appellees.
JON O. NEWMAN, Circuit Judge.
This appeal primarily concerns a narrow issue of federal
procedural law and an equally narrow issue of New York procedural
law. The federal law issue is whether a real party defendant in
interest that owns and operates a non-juridical entity that was
improperly sued in state court may remove a diversity case to
federal court without filing an appearance in the state court
prior to attempting removal. The state law issue is whether New
York’s rule tolling a limitations period because of a plaintiff’s
insanity, N.Y. C.P.L.R. § 208 (McKinney 2013), applies to the
facts of this case. These issues arise on an appeal by
Plaintiff-Appellant Dr. Maria La Russo, as attorney in fact for
her son, A. Matthew De Lucia, from the March 28, 2013, judgment
of the United States District Court for the Southern District of
New York (Edgardo Ramos, District Judge). The judgment, entered
after the District Court denied La Russo’s challenge to removal,
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granted a motion by Defendant-Appellee St. George’s University,
Ltd. (“SGU Ltd.”) to dismiss because La Russo’s complaint was
time-barred. See La Russo v. St. George’s University School of
Medicine, 936 F. Supp. 2d 288 (S.D.N.Y. 2013) (“Dist. Ct. Op.”).
The complaint asserted medical malpractice, breach of contract,
and negligence claims based on alleged failures by St. George’s
University School of Medicine (“SGU Med.” or “the School”) to
appropriately treat De Lucia’s mental illness.
We conclude that the case was properly removed and that the
complaint was properly dismissed as time-barred. We therefore
affirm.
Background
The following facts are based primarily on La Russo’s
complaint, which we assume to be true for purposes of this
appeal. See, e.g., Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.
2008).
La Russo’s son, De Lucia, was formerly a student at SGU Med.
in Grenada. Prior to his attending the School, La Russo and her
son attended an information session at which School staff assured
attendees “that there would be medical facilities and treatment
available for students on the Grenada Campus, including medical
evacuation if needed.” Complaint ¶ 57. They were also provided
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with a publication entitled “St. George’s University School of
Medicine; Think Beyond; 2005-2006,” which stated:
University Health Services (UHS) maintains
modern clinic facilities with scheduled and
walk-in hours from 9:00AM to 4:30PM, Monday
through Friday. Additionally, there is daily
24-hour coverage by well-credentialed
physicians and physician assistants to provide
students with emergency care when the clinic
is closed. Medical emergencies in Grenada are
referred to Grenada General Hospital or St.
Augustine Clinic . . . . University Health
Services facilitates with air evacuation, if
indicated, on both campuses.
Id. ¶ 58.
In January 2007, De Lucia received a letter of admission
from the School. Enclosed with the letter was a handbook from
the Office of the Dean of Students that stated, “The Office of
the Dean of Students advocates on behalf of students to help you
make the best use of the services available both on and off
campus. Any student with mental or physical disabilities is
provided a wide range of support services.” Id. ¶ 59.
De Lucia began attending the School in August 2007. In the
spring of 2009, he visited with his faculty advisor, Dr.
Jacqueline Stanley. De Lucia arrived at the meeting looking
disheveled and dressed in sweat pants despite the hot climate and
asked to see the dean regarding academic issues. Stanley told
De Lucia he could not see the dean due to his attire and
encouraged him instead to go to the beach and take a vacation.
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Stanley did not advise De Lucia to “visit the counseling
department, speak with the dean of students, or see any medical
or mental health professional who would have been able to counsel
him and provide medical treatment and medication as necessary.”
Id. ¶ 26.
De Lucia went on a sailing trip in May of 2009. Upon his
return, he was suffering from mental illness. He wandered
aimlessly on and off the school’s campus, and was “disoriented”
and “sickly.” Id. ¶ 28. Other students alerted School officials
to De Lucia’s condition. In response, School security officers
picked up De Lucia in the middle of the night1 and escorted him
to Mount Gay Hospital in Grenada, an institution La Russo claims
“had a bad reputation, maintained deplorable and unsafe
conditions, and did not administer appropriate care.” Id. ¶ 49.
School staff failed to inform De Lucia’s parents about his
admission to the hospital and failed to provide an “informative
response” to his parents’ messages. Id. ¶ 34. On May 14, after
being notified of De Lucia’s admission to the hospital by fellow
students, De Lucia’s father traveled to the hospital where he
found his son “in an outdoor cell lying on a concrete floor
without a mattress, naked except for boxer shorts that were
1
The date of this occurrence is not specified in La Russo’s
complaint.
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hanging down.” Id. ¶ 36. De Lucia was “incoherent due to
overdosing of Haldol and other drugs,” id. ¶ 37, and “was
experiencing muscle weakness, muscle tremors, dilated eyes,
drowsiness, and dry mouth and lips due to his overmedication and
a lack of adequate hydration,” id. ¶ 38. His body was “covered
with insect bites and a noxious odor of urine and feces permeated
his person.” Id. ¶ 39. De Lucia’s parents obtained his release
from Mount Gay Hospital on May 16, 2009, and he returned to the
United States the following day.
De Lucia returned to the School twice in attempts to
complete his medical education. On both occasions, however, he
became ill and returned to the United States. Since his return
to the United States, De Lucia has required medical treatment to
ameliorate conditions that were non-existent prior to his
admission to Mount Gay Hospital.
La Russo’s lawsuit. La Russo initiated a lawsuit in New York
Supreme Court by filing a notice and summons. She alleged that
SGU Med. engaged in psychiatric malpractice, breached its
contract with De Lucia, and was negligent. La Russo’s claims
were based on the School’s response to De Lucia’s mental health
difficulties while he was a student at the School. Her
psychiatric malpractice claim stems from the School’s “fail[ure]
to refer [De Lucia] to counseling or other medical treatment and,
though aware of his condition, [its] fail[ure] to intervene and
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provide [De Lucia] with proper psychiatric and medical
treatment.” Id. ¶ 72.
La Russo also alleges a breach of contract claim. She
alleges that a contract was formed between the School and De
Lucia “when [the School] offered a variety of educational and
related services to [De Lucia] and [De Lucia] agreed to, and did,
pay tuition in exchange for those services.” Id. ¶ 77. Further,
she alleges that the School “breached the contract when, instead
of providing medical treatment by well-credentialed physicians
and physician assistants at [the School’s] facilities,
appropriate emergency care, or emergency evacuation, [the School]
failed to provide proper medical treatment . . . .” Id. ¶ 79.
Finally, La Russo alleges that the Defendants owed both
herself and De Lucia a duty to exercise “reasonable care and
diligence in safeguarding Mr. De Lucia, and ensuring that no
unnecessary harm befell him.” Id. ¶ 84. She alleges that the
School’s employees and/or agents, including Stanley, “negligently
failed to use due care” handling De Lucia’s mental illness. Id.
¶ 85. She also alleges that the School breached its duty to
properly train its employees to “recognize and properly address
a student’s need for psychological services and/or a student’s
psychological crisis.” Id. ¶ 86.
La Russo’s lawsuit was filed on November 15, 2011. The
notice and summons named “St. George’s University School of
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Medicine” as the sole defendant and was amended to add ten “Doe”
defendants. La Russo served a copy of the summons and notice on
the New York Secretary of State, mailed a copy by certified mail
to SGU Med. in Grenada, and also served the summons and notice
on St. George’s University, LLC, but not SGU Ltd.
On March 7, 2012, La Russo sought an Order to Show Cause
seeking permission to file a supplemental summons adding SGU
Ltd., SGU LLC, USS LLC, and Stanley as defendants, and seeking
a ruling that the claims against the additional defendants
related back to the time the initial summons was filed. The
Order to Show cause was issued on March 12, 2012. On April 19,
2012, one day before the Order to Show Cause was returnable, SGU
Ltd., asserting that it was the entity that owns and operates the
non-juridical named defendant in the caption, filed a notice of
removal to the District Court.
La Russo moved to dismiss for lack of subject matter
jurisdiction, arguing that because SGU Ltd. had never formally
intervened in the action or been joined as a defendant, removal
was improper. The District Court denied the motion to dismiss
and granted the Defendants’ motion to dismiss under Rule 12(b)(6)
because the medical malpractice claim was time-barred and the
contract and negligence claims were duplicative of the
malpractice claim.
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Discussion
I. Removal
La Russo first contends that SGU Ltd. had no authority to
remove this case to the District Court. She argues that if SGU
Ltd. believed that SGU Med. lacked capacity to be sued, it should
have moved to dismiss the case in state court. La Russo further
contends that under New York General Associations Law § 13, she
may sue SGU Med. as an unincorporated association. SGU Ltd.
replies that “where, as here, a legally non-existent entity is
named as a defendant, the only logical ‘defendant’ vested with
authority to remove is the real defendant in interest, which here
is SGU Ltd.”
Initially we note that La Russo’s attempt to sue SGU Med.
was ineffective. Rule 17(b) of the Federal Rules of Civil
Procedure provides, with an exception not relevant to this case,2
that state law governs whether a party has the capacity to be
sued. Fed. R. Civ. P. 17(b) (“Capacity to sue or be sued is
determined as follows: . . . (3) for all other parties [other
than an individual or corporation], by the law of the state where
the court is located . . . .”). Under New York law, an action
2
The exception permits an unincorporated association that lacks
capacity to sue or be sued under state law to sue or be sued in its
common name to enforce a substantive right existing under the United
States Constitution or laws. See Fed. R. Civ. P. 17(b)(3)(A).
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against an unincorporated association can be brought only
“against the president or treasurer.” N.Y. Gen. Ass’ns Law § 13
(McKinney 2013). See, e.g., Fairfield Lease Corp. v. Empire
Employees Sunshine Club, 345 N.Y.S.2d 305, 329 (N.Y. Dist. Ct.
1973) (“The fatal defect in the plaintiff’s contention is that
this action, if it is to be maintained, must be against the
president of the association.”); League of Mutual Taxi Owners v.
United Const. Workers, Local 35, 90 N.Y.S.2d 288, 288-89 (N.Y.
Sup. 1949) (“[Defendant] is described in the complaint as an
unincorporated association . . . . As such, it is not considered
a legal entity, but section 13 of the General Associations Law
provides for the maintenance of actions against the president or
treasurer of the association . . . .”). La Russo did not sue
either the president or the treasurer of SGU Med. SGU Med.
itself was not an entity with capacity to be sued under state
law.3
3
La Russo contends that the District Court in Kosta v. St.
George’s University School of Medicine, 641 F. Supp. 606 (E.D.N.Y.
1986), ruled that SGU Med. was an entity with capacity to be sued.
However, the St. George’s entity that was a defendant in Kosta was not
the unincorporated association that La Russo claimed was the defendant
in this litigation. It was “an entity organized under the laws of
Grenada[,] and its stock, which is controlled by four shareholders,
has been placed into an educational trust controlled by nine
trustees.” Id. at 608. SGU Ltd. represents, without contradiction,
that this entity was St. George’s University School of Medicine Ltd.,
which was the predecessor of SGU Ltd. Br. for SGU Ltd. at 30.
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We next turn to the issue whether SGU Ltd. was entitled to
remove the case to the District Court. SGU Ltd. asserts it was
entitled to remove because, as the owner and operator of the non-
juridical entity that La Russo attempted to sue, it is the “real
defendant in interest.” Br. for SGU Ltd. at 17. Although the
quoted phrase appears to describe accurately the status of SGU
Ltd. in this litigation, we pause to consider it because it does
not appear in the Federal Rules of Civil Procedure, including
Rule 17, or in the removal statute, 28 U.S.C. § 1441.
Rule 17(a), captioned, “Real Party in Interest,” provides:
“An action must be prosecuted in the name of the real party in
interest.” Fed. R. Civ. P. 17(a)(1). In terms, the rule appears
to apply to the party initiating an action, not a defendant
resisting a claim. That is the view of a leading treatise. “By
its very nature, Rule 17(a) applies only to those who are
asserting a claim and thus is of most importance with regard to
plaintiffs,” 6A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1543 (4th ed. 2007), and flatly
declares, “Rule 17(a) is limited to plaintiffs,” id. § 1542.
The phrase “real party defendant in interest” appears to
have entered federal jurisprudence in 1886 in the syllabus to an
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opinion ruling that the wife of an executor was the real party
defendant in interest whose assets would be diminished by the
lawsuit. See Witters v. Sowles, 28 F. 121 (C.C. Vt. 1886). The
phrase has been used mostly by district courts, occasionally by
courts of appeals, and once by the Supreme Court, see Lumbermen’s
Mutual Casualty Co. v. Elbert, 348 U.S. 48, 51 (1954).
The first decision to use the phrase in the context of a
challenged removal is the opinion of District Judge Charles S.
Haight, Jr. in M.E. Aslett Corp. v. Crosfield Electronics, Inc.,
No. 86 CIV. 3549, 1987 WL 7023 (S.D.N.Y. Feb. 17, 1987).
Crosfield Electronics (U.S.A.) Ltd. removed to the district court
a case filed in a state court against an entity identified as
“Crosfield Electronics, Inc.” The plaintiff sought a remand to
the state court on the ground that removal could be achieved only
by the party named as a defendant in the complaint, i.e.,
Crosfield Electronics, Inc. Affidavits established that
“Crosfield Electronics, Inc.” was a trade name of Crosfield
Electronics (U.S.A.) Ltd. and had no legal existence or the
capacity to be sued.
Acknowledging that 28 U.S.C. § 1441(a) permits “the
defendant” to remove a case over which a district court has
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jurisdiction, Judge Haight declined to read “the defendant” as
the entity named as a defendant in the complaint, and instead
read the phrase to mean “the real party defendant in interest.”
M.E. Aslett, 1987 WL 7023, at *2. As he explained, “Removal
cannot be denied to this defendant merely because plaintiff
improperly sued its fictitious trade name.” Id. Removal by the
real party defendant in interest was subsequently approved by
other district courts. See Hillberry v. Wal-Mart Stores East,
L.P., No. Civ.A.3:05CV-63-H, 2005 WL 1862087 (W.D. Ky. Aug. 3,
2005) (named defendant was non-existent entity); Pioneer
Exploration, Ltd. v. Kansas Gas Service Co., No. 04-1335, 2004
WL 2931403 (D. Kan. Dec. 17, 2004) (named defendant existed only
to license trade name).
The real party defendant in interest is not only entitled to
remove, but, if it seeks removal, it must act promptly because
the 30-day interval in which it is permitted to do so, see 28
U.S.C. § 1446(b) (2013), begins when it is “on notice that the
wrong company defendant has been named.” Hillberry, 2005 WL
1862087, at *1; see Ware v. Wyndham Worldwide Inc., Civ. No. 09-
6420, 2010 WL 2545168, at *2 (D. N.J. June 18, 2010) (30-day
interval started when real defendant accepted service of
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complaint, although complaint named non-existent entity).
The unstated premise of all of these decisions, with which
we fully agree, is that the concept of a “real party defendant
in interest” is not only entirely valid, it is an important
aspect of removal jurisprudence, despite the absence of the
phrase from Rule 17 or elsewhere in the Federal Rules of Civil
Procedure.
We next consider La Russo’s contention that even if SGU Ltd.
was entitled to remove, it failed to do so properly because it
had not entered an appearance in the state court. La Russo makes
this claim obliquely by pointing out that in all of the removal
cases discussed above, the removing defendant had filed an
appearance in the state court. The argument lacks merit.
Nothing in sections 1441 or 1446 requires a removing defendant
to have appeared in the state court proceeding prior to removal.
Nor is there merit in La Russo’s claim that removal was improper
because SGU Ltd. was not served. Service of process upon a
removing defendant is not a prerequisite to removal. See Delgado
v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000); City of Ann
Arbor Employees’ Retirement System v. Gecht, No. C-06-7453, 2007
WL 760568, at *9 (N.D. Cal. Mar. 9, 2007).
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Next, we consider La Russo’s claim that, even if SGU Ltd.
properly removed, the District Court lacked diversity
jurisdiction. Contrary to her claim, diversity jurisdiction was
not destroyed by the listing of SGU Med., alleged to be a New
York resident, as a named defendant. As a non-juridical entity
that cannot be sued, its being named as a purported defendant
does not destroy diversity jurisdiction. Furthermore, “[e]ven
if a named defendant is [a non-diverse] citizen, however, it is
appropriate for a federal court to dismiss such a defendant and
retain diversity jurisdiction if the complaint shows there is no
possibility that the plaintiff can establish any cause of action
against that defendant.” Tillman v. R.J. Reynolds Tobacco, 253
F.3d 1302, 1305 (11th Cir. 2001). Nor is there merit in La
Russo’s claim that diversity jurisdiction is lacking because SGU
Ltd. is owned by St. George’s University, LLC, a Delaware
corporation that Plaintiff alleged has a “business presence” in
New York. Diversity jurisdiction depends on the citizenship of
a corporate defendant with capacity to be sued, see 28 U.S.C.
§ 1332(c)(1), not the citizenship of the corporate defendant’s
corporate owner.
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II. Timeliness and the Insanity Toll
The District Court concluded that La Russo’s claim was time-
barred because the two and one-half year limitations period for
the medical malpractice claim, see N.Y. C.P.L.R. § 214-a
(McKinney 2013), expired on November 14, 2011, one day before the
summons was filed. See Dist. Ct. Op., 936 F. Supp. 2d at 299.
The Court deemed the limitations period to start when De Lucia’s
malpractice accrued, which was May 14, 2009, the day De Lucia was
brought to Mount Gay Hospital. See id. However, N.Y. C.P.L.R.
§ 208 provides, “If a person entitled to commence an action is
under a disability because of infancy or insanity at the time the
cause of action accrues, and . . . if the time otherwise limited
is less than three years, the time shall be extended by the
period of disability.” La Russo does not dispute that she filed
her claims after the limitations period of two and one-half years
for her malpractice claim had run. She argues that the statute
of limitations should be tolled because of De Lucia’s insanity
for at least two days, apparently referring to May 14 and 15, the
day De Lucia was brought to Mount Gay Hospital and the next day
when his father observed his condition at the hospital. Two days
of De Lucia’s insanity would have extended the limitations period
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to November 16, 2009, in which event the summons, filed on
November 15, 2009, would have been timely by one day.
In ruling that La Russo’s claim was time-barred, the
District Court did not initially apply the requirement of section
208 that in the event of insanity “the time shall be extended by
the period of disability.” Instead, the Court first ruled that
the insanity toll did not apply because De Lucia “did not
continuously experience a total ‘inability to function in
society’ during the relevant time period.” Dist. Ct. Op., 936 F.
Supp. 2d at 300 (quoting McCarthy v. Volkwagen of America, Inc.,
55 N.Y.2d 543, 548 (1982) (emphasis in original). The District
Court understood the relevant time period to be the two and one-
half years limitations period starting from the date the cause
of action accrued, i.e., May 14, 2009.4 The Court derived the
4
The District Court stated:
Defendant argues, and Plaintiff appears to concede, that the
malpractice cause of action accrued, at the latest, when De
Lucia was transferred to Mount Gay, which occurred no later
than May 14, 2009. Mot. to Dismiss 9–10, 14. Thus, the
latest date on which the two and one-half years limitations
period could have expired was November 14, 2011, one day
prior to the filing of the summons in state court. Id. To
satisfy the standard for insanity under CPLR 208, Plaintiff
would therefore have to allege that De Lucia continuously
experienced an “over-all inability to function in society”
during the period between May 14, 2009 and November 14,
2011.
Dist. Ct. Op., 936 Supp. 2d at 299 (second emphasis added).
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requirement of “continuous” insanity from de los Santos v.
Fingerson, No. 97 Civ. 3972, 1998 WL 740851, at *3 (S.D.N.Y. Oct.
23, 1998). See Dist. Ct. Op., 936 F. Supp. 2d at 298.
Although de los Santos stated that “the insanity alleged
under § 208 must be found to be continuous,” 1998 WL 740851, at
*3 (citing Graboi v. Kibel, 432 F. Supp. 572, 579 (S.D.N.Y.
1977)), it did not require “continuous” insanity throughout the
limitations period, as did the District Court here. Instead, de
los Santos said the time within which the action must be
commenced runs from “‘after the disability ceases.’” Id. (quoting
N.Y. C.P.L.R. § 208). Graboi, cited by de los Santos, also said
that the period of insanity must be continuous, citing Jordan v.
State, 56 Misc. 2d 1032, 290 N.Y.S.2d 621 (Ct. Claims 1968), but
did not indicate the relevant time period in which the insanity
must be continuous.5 It is from Jordan that we learn the time
period in which insanity must be continuous to toll the
limitations period of section 208.
5
Graboi also cited Schwartzberg v. Teacher’s Retirement Bd., 70
N.Y.S.2d 770 (Sup. Ct. 1947), rev’d on other grounds, 273 App. Div.
240, 76 N.Y.S.2d 448 (1st Dep’t 1948), aff’d, 298 N.Y.2d 395, 373
N.Y.S.2d 39 (1975), but that case involved the different question of
whether a person’s mental illness during confinement in a mental
institution continued with sufficient severity after her discharge to
render her incompetent to execute a document.
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Jordan concerned tolling that resulted from incarceration.
After an initial incarceration, the plaintiff was released and
again incarcerated. The issue was whether the second period of
incarceration tolled the limitations period. The Court ruled
that it did not, at least where the interval during which the
plaintiff was able to pursue a claim after the first
incarceration was substantial. 290 N.Y.S.2d at 625-26.
Interestingly, this principle was based on an early Kentucky case
involving successive periods of insanity. See Duncan v. Vick,
7 Ky. L. Rptr. 756 (Ky. 1886).
Thus, the holding of Jordan, the ultimate case law source of
the requirement that insanity must be continuous, means that a
tolling disability ceases to toll if interrupted by an interval
in which there was no disability. Jordan makes clear that “where
a disability existing at the time of the accrual of the cause of
action is removed the statute will then run and will not be
suspended by any subsequent intervening disability.” 290 N.Y.S.2d
at 626; see McCarthy, 55 N.Y.2d at 546 (“[T]he limitations period
in a personal injury action will be extended to three years after
the disability ceases.”); Washington v. Doe, No. 08 CV 4399, 2011
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WL 679919, at *2 (E.D.N.Y. Feb. 16, 2011) (“Under this continuity
requirement, a lucid interval of any significant duration stops
the toll.”).
When the District Court ruled that De Lucia’s insanity was
not continuous throughout the interval from May 14, 2009, until
November 14, 2011, it pointed to periods of unquestioned lucidity
after De Lucia’s release from Mt. Gay Hospital. See Dist. Ct.
Op., 936 F. Supp. 2d at 299-300. But the Court did not initially
consider La Russo’s claim that De Lucia was insane for at least
two days of hospitalization, May 14 and 15, a claim that, if
true, would have rendered his lucidity after May 15 irrelevant.
If De Lucia was insane for at least those two days, section 208
would have extended the limitations period by two days.
Although misinterpreting the time period in which insanity
must be continuous, the District Court went on to rule that for
the entire two and one-half years period from May 14, 2009, De
Lucia was not insane within the meaning of section 208. See id.
at 300. If this ruling, which covers May 14 and 15, is
sustainable, the error with respect to the requirement of
continuous insanity from the date the cause of action accrued is
of no consequence.
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New York construes insanity as used in N.Y. C.P.L.R. § 208narrowly. McCarthy, the leading New York case on the definition
of insanity in section 208 held that “the Legislature meant to
extend the toll for insanity to only those individuals who are
unable to protect their legal rights because of an over-all
inability to function in society.” 55 N.Y.2d at 548, 450 N.Y.S.2d
457. Courts have noted that the statute “speaks in terms of
insanity, not merely mental illness,” and “apathy, depression,
posttraumatic neurosis, psychological trauma and repression
therefrom or mental illness alone have been held to be
insufficient to invoke the [insanity] toll.” See de los Santos,
1998 WL 740851, at *4 (citing Wenzel v. Nassau Cnty. Police
Dep't, No. 93 Civ. 4888(ADS), 1995 WL 836056, at *4 (E.D.N.Y.
Aug. 5, 1995) (citing cases)) (internal quotation marks omitted);
see also Sanders v. Rosen, 159 Misc.2d 563, 605 N.Y.S.2d 805, 814
(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.”). In determining the
applicability of the insanity toll, it is appropriate to “focus
on the plaintiff's conduct and activities.” Dumas v. Agency for
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Child Development, 569 F. Supp. 831, 834 n. 5 (citing cases).
“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.” Swartz v. Berkshire Life Ins. Co.,
No. 99 Civ. 9462, 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28,
2000) (citation omitted).
Applying New York’s strict standard to the interval that
included May 14 and 15, the District Court stated:
[A]ssuming arguendo that De Lucia's mental condition
upon his admission to Mount Gay was continuous
throughout the relevant period, the Court finds that
Plaintiff's allegations do not establish a disability
so “severe and incapacitating” that it rendered De
Lucia “totally unable to function.” Swartz, 2000 WL
1448627, at *5. The only allegations Plaintiff makes
regarding De Lucia's mental state during the relevant
period is that he was “disoriented, sickly, and had
been aimlessly wandering on and off the St. George's
campus,” and that during his stay at Mount Gay, he
appeared “incoherent due to overdosing of Haldol and
other drugs” and “frightened” touched by an aggressive
patient. Compl. ¶¶ 28, 35–37, 43. These allegations are
insufficient as a matter of law to satisfy the very
high standard required to invoke tolling for insanity”
under CPLR 208. See, e.g., 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,” “unable to leave her home unescorted,”
“experienced severe side effects from medication and
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black-outs ... experienced a period of hospitalization
... arising from [ ] depression,” and “suffers from
suicidal ideation” were insufficient to satisfy the
standard for tolling under CPLR 208); Dumas, 569 F.
Supp. at 833 (holding that diagnosis of “schizophrenia,
paranoid, chronic with acute exacerbation” 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”); Eisenbach, 62 N.Y.2d at 974,
479 N.Y.S.2d 338, 468 N.E.2d 293 (holding that
plaintiff's hospitalization during which strong
painkillers were administered resulting in plaintiff
being “generally confused, disoriented, and unable to
effectively attend to [his] affairs” did not rise to
the level of insanity under CPLR 208). Moreover, to the
extent that Plaintiff's allegations suggest that De
Lucia suffered from an unidentified “mental illness”
which required him to undergo “continuous psychiatric
care since his return from Grenada in May 2009,” Compl.
¶ 69, case law is clear that mental illness alone is
insufficient to invoke the insanity toll. See de los
Santos, 1998 WL 740851, at *4.
Dist. Ct. Op., 936 F. Supp. 2d at 300 (emphasis added) (footnote
omitted).
In making this ruling, the District Court resolved no
factual disputes, instead taking the relevant facts from La
Russo’s complaint and applying New York’s strict legal standard
for section 208 insanity. Our review is therefore de novo. See,
e.g., Achtman v. Kirby, McInerey & Squire, LLP, 464 F.3d 328, 337
(2d Cir. 2006). Upon such review, we see no error. Nearly all
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of La Russo’s allegations concerning the scene at the hospital
recount deficient conditions of confinement, not De Lucia’s
insanity. The only allegation of his inability to function, that
he was “incoherent,” attributed this temporary difficulty to
excessive medication. Furthermore, we see merit in the opinion
of then-District Judge Chin in Luciano v. City of New York, 684
F. Supp. 2d 417, 422 (S.D.N.Y 2010), which declined to apply an
insanity toll where the plaintiff’s inability to function
persisted for only a day at the beginning of the limitations
period. As the District Court here noted,
[A]lthough not determinative of the issue, the fact
that Plaintiff filed the summons on November 15, 2011,
one day after the statute of limitations had run,
suggests that the one-day lapse was due to mere
oversight or mistake, rather than De Lucia's inability
to “protect [his] legal rights because of an over-all
inability to function in society.” McCarthy, 55 N.Y.2d
at 548.
Dist. Ct. Op., 936 F. Supp. 2d at 300 n.6.
The District Court properly determined the medical
malpractice claim to be untimely.
III. The Contract and Negligence Claims
Finally, La Russo contends that her contract and negligence
claims are not barred because the statute of limitations period
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is longer for these causes of action and they are not duplicative
of her psychiatric malpractice claim. We disagree, as did the
District Court.
With regard to the contract claim, “[t]he law is clear that
a breach of contract claim arising out of the rendition of
medical services by a physician will withstand a test to its
legal sufficiency only where it is based upon an express special
promise to effect a cure or to accomplish some definite result.”
Monroe v. Long Island College Hospital, 84 A.D.2d 576, 576, 443
N.Y.S.2d 433, 434 (N.Y. App. Div. 2d Dep’t 1981). La Russo fails
to allege any such “special promise.” The district court
correctly concluded that SGU Med.’s promotional and information
materials did not promise a specific course of treatment or
provide the basis for a breach of contract claim. See Catapano
v. Winthrop University Hospital, 19 A.D.3d 355, 355, 796 N.Y.S.2d
158, 159 (N.Y. App. Div. 2d Dep’t 2005) (“[P]rovisions of the
‘Patients Bill of Rights’ do not constitute the requisite
‘express promise’ or special agreement with the patient so as to
furnish the basis for a breach of contract claim.”). As such,
La Russo’s contract claim is essentially a malpractice action and
like the psychiatric malpractice claim, it is time-barred. See
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Hazel v. Montefiore Medical Center, 243 A.D.2d 344, 345, 663
N.Y.S.2d 165, 165 (N.Y. App. Div. 1st Dep’t 1997) (claims that
are “merely reformulations” of malpractice claims were properly
dismissed as time-barred where malpractice claim was time-
barred).
Similarly, La Russo’s negligence claim is merely a
reformulation of her medical malpractice claim. “When the duty
arises from the physician-patient relationship or is
substantially related to medical treatment, the breach gives rise
to an action sounding in medical malpractice, not simple
negligence.” Stanley v. Lebetkin, 123 A.D.2d 854, 854, 507
N.Y.S.2d 468, 468 (N.Y. App. Div. 2d Dep’t 1986). La Russo
alleges that agents of SGU Med., including De Lucia’s faculty
advisor “negligently failed to use due care in the performance
of their duties” by failing to refer De Lucia to counseling or
medical treatment and failing to provide him with proper
psychiatric care and medical treatment. These alleged failures
are substantially related to medical treatment and as such, are
duplicative of the medical malpractice claims. In sum, the
District Court’s rulings on La Russo’s contract and negligence
claims were correct.
Conclusion
The judgment of the District Court is affirmed.
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