Koulkina v. City of New York
| Decision Date | 19 February 2008 |
| Docket Number | No. 06 Civ. 11357(SHS)(HBP).,06 Civ. 11357(SHS)(HBP). |
| Citation | 559 F.Supp.2d 300 |
| Parties | Oxana Alexandrovna KOULKINA, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Oxana Alexandrovna Koulkina, New York City, Pro se.
Nina Vasilievna Koulikova, New York City, Pro se.
Jessica Talia Cohen, NYC Law Department, Richard E. Lerner, Shelowitz Broder LLP, Jessica Talia Cohen, NYC Law Department, New York City, Andrew N. Squire, Andrew Squire, ESQ., Brooklyn, NY, Gregory John Radomisli, Martin Clearwater & Bell LLP, Jonathan B. Bruno, Kaufman, Borgeest & Ryan, LLP, Ares Demetrius Axiotis, Axiotis, Michalovits & Huebner, LLP, William Goldman Scher, Garbarini & Scher, P.C., New York City, for Defendants.
On January 23, 2008, Magistrate Judge Henry Pitman issued a thorough 68 page Report and Recommendation recommending that the motions to dismiss made by defendants NYPD, Smock, Callagy, Buzin, Bobrovskaya, Dr. Gaudio, Kramer, Dr. Kelly, Dr. Pandya, Muzzin, and Charne be granted in their entirety and that the motion to dismiss made by the City of New York, Finkle, and Kuznetsoff be granted in part and denied in part. After a de novo review of the Report and Recommendation dated January 23, 2008, and plaintiffs' "Answer to Report and Recommendation" dated February 14, 2008,
IT IS HEREBY ORDERED that:
1. The Court adopts the Report and Recommendation of Magistrate Judge Pitman;
2. The motions to dismiss made by defendants Smock, Callagy, Buzin, Bobrovskaya, Dr. Gaudio, Kramer, Dr. Kelly, Dr. Pandya, Muzzin, and Charne are granted in their entirety [35, 43, 48, 70, 80, 81, 92]; and
3. The motion to dismiss made by defendants City of New York, NYPD, Finkle, and Kuznetsoff [94] is granted in its entirety with respect to the NYPD; granted to the extent that it seeks dismissal of the Section 1983 claims against the City, Finkle, and Kuznetsoff; and denied to the extent it seeks dismissal of the intentional infliction of emotional distress claims against the City, Finkle, and Kuznetsoff.
SO ORDERED.
REPORT AND RECOMMENDATION
In an Amended Complaint filed on February 20, 2007, plaintiffs pro se, Oxana Koulkina and Nina Koulikova, assert claims against nineteen defendants for civil rights violations, pursuant to 42 U.S.C. § 1983, and for numerous state law violations. Fourteen defendants have moved to dismiss on various grounds:
(1) The City of New York (the "City"), the New York City Police Department (the "NYPD"), Florence Finkle, and Victor Kuznetsoff move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Docket Item 94);
(2) Edward Smock, Esq. and Anne Callagy, Esq. move to dismiss pursuant to Rules 12(b)(1), (2), (4), (6), and 12(c) (Docket Item 35);
(3) Heath Buzin, Esq. and Viktoriya Bobrovskaya move to dismiss pursuant to Rules 12(b)(1) and (6) (Docket Item 80);
(4) Dr. Giovanni Gaudio and Laura Kramer move to dismiss pursuant to Rules 12(b)(6) and 12(c) (Docket Item 92);
(5) Dr. Bryan Kelly moves to dismiss pursuant to Rules 12(b) (1), (2), (4), (5),
(6) and 12(c) (Docket Item 81);
(6) Dr. Paru Pandya moves to dismiss pursuant to Rules 12(b) (1), (6), and 12(c) (Docket Item 43);
(7) Victor Muzzin moves to dismiss pursuant to Rule 12(b)(6) (Docket Item 70); and
(8) Allen Charne moves to dismiss pursuant to Rules 12(b)(1), (6), and 12(c) (Docket Item 48).
For the reasons set forth below, I respectfully recommend that the motions made by the NYPD, Smock, Callagy, Buzin, Bobrovskaya, Dr. Gaudio, Kramer, Dr. Kelly, Dr. Pandya, Muzzin, and Charne be granted in their entirety and that the motion made the City, Finkle, and Kuznetsoff be granted in part and denied in part.
Plaintiffs, who are citizens of Russia, live in New York City and are homeless (Amended Complaint, dated Feb. 20, 2007 ("Am.Compl.") at 1). Their Amended Complaint sets forth a mix of allegations against a number of defendants. Some of their allegations are interrelated; some are not.
In 2001, plaintiffs sought advice from Anne Callagy, Esq., an attorney with the Legal Aid Society, concerning how they could obtain public assistance benefits and work authorizations. Callagy succeeded in obtaining public assistance benefits for plaintiffs but not the work authorizations (Am. Compl. at 20-21).
In April 2004, Ryan Villamil met plaintiffs and offered them, rent free, an apartment located at 212 East 90th Street, New York, New York (Am. Compl. at 3). Plaintiffs accepted and resided in the apartment for approximately one year and two months. On June 14, 2005, after Villamil commenced an eviction proceeding against plaintiffs, Robert Barsch, a New York City Marshal, and two New York City Police Officers, Agustin Melendez and Shaun Jaikissoon, evicted plaintiffs from the apartment (Am. Compl. at 4-5).2 While on the sidewalk outside the apartment, plaintiffs copied the officers' names and badge numbers, intending to lodge complaints against them. According to plaintiffs, this prompted the officers to assault them physically and to arrest them without probable cause. After arresting plaintiffs, the officers brought them to the 19th Precinct located at 153 East 67th Street (Am. Compl. at 5).
On June 15, 2005, plaintiffs appeared before the New York City Criminal Court on misdemeanor charges relating to the arrests described in the preceding paragraph. Ned Smock, Esq., an attorney with the Legal Aid Society, was assigned to and represented plaintiffs during this proceeding. Plaintiffs allege that Smock's representation was inadequate because he "did not say to the Judge that plaintiffs [were] not guilty" (Am. Compl. at 12).
At midnight on June 15, 2005, after leaving Criminal Court, plaintiffs went to the emergency room of New York Presbyterian Hospital ("NYPH"), seeking treatment for injuries allegedly sustained during their confrontation with the police. Koulikova claims to have suffered a cut lip, and Koulkina claims to have sustained injuries to her left knee (Am. Compl. at 5). At approximately 2:00 a.m. on June 16, 2005, Dr. Giovanni Gaudio, of NYPH, examined plaintiffs' injuries (Am. Compl. at 7; Emergency Department Record, dated June 16, 2005, annexed as Exhibit D to Am. Compl.). Plaintiffs allege that Dr. Gaudio "did not eliminate and did not prevent further infection [to Koulikova's] mouth" and "did not eliminate infection on [Koulkina's] left knee" (Am. Compl. at 7).
After being examined by Dr. Gaudio, plaintiffs met with Laura Kramer, a social worker employed by NYPH. Kramer took notes of her counseling session with plaintiffs (Notes of Kramer, dated June 16, 2005 ("Kramer Nts."), attached as Exhibit G to Am. Compl.). In her notes, Kramer wrote that plaintiffs were "`well and clean appearing,'" "`wearing high heeled shoes,'" "`vague about where they ha[d] been living,'" "`[seen] asleep in a library,'" "`[at one point] stay[ing] at a Hostel for a year'" and "`[attempting] to secure a visa'" (Am. Compl. at 9, quoting Kramer Nts.). Plaintiffs allege that these statements are false (Am. Compl. at 9-11).
On June 18, 2005, plaintiffs returned to the emergency room at NYPH and were referred to Victor Kuznetsoff, Esq. at the New York City Office of Immigrant Affairs (Am. Compl. at 13). After contacting the United States Immigration and Naturalization Service (the "INS"),3 Kuznetsoff informed plaintiffs that their immigration case was not active. Plaintiffs allege that Kuznetsoff "did not assist [them] in obtaining [ ] legal assistance" (Am. Compl. at 13).
In July 2005, plaintiffs consulted attorney Heath Buzin, Esq. about commencing an action against the City arising from the injuries they allegedly sustained during their arrests. Plaintiffs allege that Buzin and Viktoriya Bobrovskaya, a paralegal at Buzin's firm, "pretended that they [were] working on plaintiff[s'] false arrest/police brutality/personal injury case" against the City (Am. Compl. at 13).
From the exhibits attached to the Amended Complaint, it appears that Buzin filed a notice of claim against the City (see Notice of Claim, dated July 19, 2005, annexed as Exhibit J to Am. Compl.), and the City requested a hearing to question plaintiffs about the extent of their alleged injuries.4 Buzin and Bobrovskaya adjourned this hearing to August 22, 2005 and again from August 22, 2005 to September 23, 2005 (see Letters from Office of Comptroller to Buzin, dated Aug. 8, 2005 & Aug. 22, 2005, annexed as Exhibit J to Am. Compl.). To gather evidence for plaintiffs' claim, Buzin and Babrovskaya instructed Koulkina to obtain an x-ray of her knee, which she did on November 2, 2005. After plaintiffs signed medical information release forms, Buzin and Babrovskaya also obtained an MRI report concerning Koulkina's knee (Am. Compl. at 14).
On January 18, 2006, Buzin sent a letter to plaintiffs, informing them that, "[a]fter conducting a thorough investigation of the facts regarding [their] case, ... it [was] the decision of [his] office not to pursue a negligence case on [their] behalf (Letter from Heath Buzin, Esq. to Koulikova and Koulkina, dated Jan. 18, 2006 ("Buzin 1/18/2006 Ltr."), attached as Exhibit J to Am. Compl.). Buzin also advised plaintiffs that, if they chose to pursue a claim against the City, they had to commence it within one year and ninety days of June 14, 2005 (Buzin 1/18/2006 Ltr.).5
On February 20, 2006, Buzin sent a second letter reiterating the substance of his first letter and adding that, after "a review of all the medical records[,] [he had] determined that the extent of [plaintiff...
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