John Doe v. Zucker
| Decision Date | 20 July 2018 |
| Docket Number | 1:17-CV-1005 (GTS/CFH) |
| Parties | JOHN DOE, a fictitious name, Petitioner, v. HOWARD ZUCKER, M.D., in his official capacity as Commissioner of Health of the State of New York; and ANNE MARIE T. SULLIVAN, M.D., in her official capacity as Commissioner of Mental Health of the State of New York, Respondents, and RUTH RIVERA; GEORGE IWCZENKO; and ERIC SCOFF, Intervenor-Respondents. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
O'CONNELL & ARONOWITZ
Counsel for Petitioner
JEFFREY J. SHERRIN, ESQ.
ROBERT L. BEGLEITER, ESQ.
MATTHEW J. KOENIG, ESQ.
GLENN J. POGUST, ESQ.
KYLE D. GOOCH, ESQ.
Currently before the Court, in this disability-discrimination action filed by John Doe ("Petitioner") against Howard Zucker, M.D., in his official capacity as Commissioner of Health of the State of New York, and Marie T. Sullivan, M.D., in her official capacity as Commissioner of Mental Health of the State of New York, ("Respondents") and Ruth Rivera, George Iwczenko, and Eric Scoff as intervenors ("Intervenor-Respondents"), is Petitioner's motion to remand to state court, and Respondents' motion to dismiss. (Dkt. Nos. 20, 27.) For the reasons set forth below, Petitioner's motion to remand this action is denied and Respondents' motion to dismiss Petitioner's Petition is granted in part and denied in part.
Petitioner commenced this action on or about November 22, 2016, in the Supreme Court of the State of New York for the County of Albany pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"). (Dkt. No. 2 [Pet'r's State Ct. Petition].)
On June 27, 2017, Intervenor-Respondents moved to intervene in the state court proceeding pursuant to CPLR § 7802. On August 11, 2017, Intervenor-Respondents' motion to intervene was granted. On September 8, 2017, Intervenor-Respondents removed Petitioner's state court action to this Court. (Dkt. No. 1.)
Generally, liberally construed, the Petition alleges as follows. (Dkt. No. 2.) Petitioner is diagnosed with paranoid schizophrenia, which resulted in him being labeled as having a "serious mental illness" ("SMI") pursuant to the Department of Health ("DOH") regulation 18 N.Y. Comp. R. & Regs. ("NYCRR") § 487.2. (Id.)
Until approximately two years ago, Petitioner had been a resident at Oceanview Manor Home for Adults d/b/a Oceanview Manor ("Oceanview") for approximately twelve years. (Id.) Approximately two years ago, Petitioner took advantage of a program offered by Respondents that enabled him to live in his own apartment, which is referred to as "supported housing." (Id.) While in supported housing, Petitioner was moved several times. (Id.) Petitioner is not satisfied with his current housing situation because he is unfamiliar with the area, does not feel safe, and cannot easily go play basketball, as he could when he lived at Oceanview Manor. (Id.) Petitioner is isolated, lonely, and has difficulty meeting people and exercising since moving into supported housing. (Id.)
Petitioner desires to move back to Oceanview, which is a transitional adult home pursuant to DOH regulation. (Id.) Petitioner was informed Oceanview is willing to accept him as a resident but cannot and will not do so because of the DOH regulation, which prohibits transitional adult homes "with a certified capacity of eighty or more and a mental health census as defined in section 487.13(b)(4) of this Part, of 25 percent or more of the resident population" to "admit any person whose admission will increase the mental health census of the facility." (Id.)
Due to these new regulations, which were enacted on or about January 16, 2013, adult homes are forced to deny people who suffer from SMI, like Petitioner, to access housing and services of adult homes in violation of federal and state law. (Id.) Further, the Office of Mental Health ("OMH") regulations prohibit hospitals "from discharging any patient with a serious mental illness to a transitional adult home, as defined in regulations of the Commissioner of Health, unless the person was a resident of the home immediately prior to his or her current period of hospitalization." (Id.)
Generally, based on these factual allegations, the Petition asserts the following six claims: (1) a claim that Respondents violated the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. ("Count One"); (2) a claim that Respondents violated the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794(a) ("Count Two"); (3) a claim that Respondents violated the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq. ("Count Three"); (4) a claim that Respondents violated the New York Human Rights Law, N.Y. Exec. Law § 296 ("NYHRL") ("Count Four"); (5) a claim that Respondents violated his right to intimate association under the First Amendment ("Count Five"); and (6) a claim that the challenged regulations "are arbitrary, capricious, and irrational" under an unspecified Constitutional or statutory provision ("Count Six").1 (Id.)
Familiarity with these claims and the factual allegations supporting them in the Petition is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)
Generally, in support of his motion to remand, Petitioner makes the following four arguments: (1) Intervenor-Respondents' Notice of Removal is incurably defective because Respondents did not consent to removal at the time of removal as is required by 28 U.S.C. § 1446(b)(2)(A); (2) in the alternative, Intervenor-Respondents are barred from exercising any right of removal because they are not the "real parties in interest" in the lawsuit and Respondents (who are the "real parties in interest") waived their right to remove; (3) even if the Court findsthat Intervenor-Respondents had a right to removal they waived that right when they indicated their intention to litigate this matter in state court and thus, waived their right to removal; and (4) in any event, Petitioner's two Article 78 claims (i.e., his Fourth and Sixth Causes of Action) must be severed and remanded because those claims must be litigated exclusively in New York State Court. (See generally Dkt. No. 24 [Pet'r's Mem. of Law].)
Generally, in response to Petitioner's motion, Intervenor-Respondents assert five arguments: (1) Intervenor-Respondents have complied with the unanimity requirement of 28 U.S.C. § 1446 () because they unambiguously represented in the Notice of Removal that Respondents consented to the removal and, in any event, to the extent there was a technical defect, that defect has now been cured; (2) Intervenor-Respondents had the right to remove this action because (a) they are also "real parties in interest" (in that they would be harmed by the relief sought by Petitioner), and (b) they did not waive that right by seeking a protective order in state court; (3) Respondents did not waive their right to consent to the removal; (4) alternatively, even if the removal was not valid pursuant to 28 U.S.C. §§ 1441 and 1446, it is valid pursuant to the All Writs Act; and (5) the Court has original jurisdiction over Petitioner's federal law claims and supplemental jurisdiction over Petitioner's state law Article 78 claims, which have not been made non-removable by statute. (See generally Dkt. No. 32 [Intervenor-Resp'ts' Opp'n Mem. of Law].)
Generally, in response to Petitioner's motion, Respondents assert four arguments: (1) the consent requirement of 28 U.S.C. § 1446 has been satisfied under the circumstances; (2) Intervenor-Respondents have a right to remove, which has not been waived under the circumstances; and (3) Respondents cannot waive Intervenor-Respondents' right to remove; and(4) the Court may exercise removal jurisdiction over Petitioner's state law claims, which have not been rendered non-removable by the statute. (See generally Dkt. No. 33 [Resp'ts' Opp'n Mem. of Law].)
Generally in its reply, Petitioner asserts three arguments: (1) this proceeding has no bearing on the federal settlement referenced by Intervenor-Respondents; (2) Respondents cannot consent to removal because (a) Intervenor-Respondents were never served with service of process and (b) the 2011 amendments to 28 U.S.C. § 1446 do not permit a defendant whose time to remove has expired to join in or consent to removal filed by a defendant who has not been served with process; and (3) Respondents should not be allowed the cure their lack of consent by filing an opposition to remand. (See generally Dkt. No. 36 [Pet'r's Reply Mem. of Law].)
Generally, in support of their motion to dismiss, Respondents make the following three arguments: (1) the U.S. District Court for the Eastern District of New York's March 22, 2017, directive to New York (in a related proceeding) to allow Petitioner to move to an adult home moots the controversy and eliminates any basis for jurisdiction; (2) Petitioner lacks standing to challenge the OMH regulation because the Petition does not allege he is currently, or ever has been, a patient in an OMH-regulated hospital and thus in a position to be injured by the OMH regulation; and (3) the Petition fails to state a cause of action in that (a) Counts One, Two, and Three do not allege any actionable discrimination because Petitioner is free to seek residence in any compliant adult home in New York that does not already have a resident population with greater than 25% of residents classified...
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