Timperio v. Bronx-Lebanon Hosp. Ctr.

Decision Date26 April 2019
Docket Number18 Civ. 1804 (PGG)
Citation384 F.Supp.3d 425
Parties Justin TIMPERIO, Plaintiff, v. BRONX-LEBANON HOSPITAL CENTER and Upstate Guns and Ammo, LLC, Defendants.
CourtU.S. District Court — Southern District of New York

Gabriel Taussig, Law Offices of Arnold N. Kriss, New York, NY, Arnold Neil Kriss, for Plaintiff.

Kurtis Robert McManus, Lee Eric Berger, Stephanie Beth-Findling Gitnik, David Bloom, Kaufman Borgeest & Ryan LLP, Valhalla, NY, Christopher Renzulli, Scott Charles Allan, Renzulli Law Firm, LLP, White Plains, NY, Michael Jos Murphy, Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, NY, for Defendants.


Paul G. Gardephe, United States District Judge

Plaintiff Justin Timperio brings claims against (1) Bronx-Lebanon Hospital Center (the "Hospital") for negligence; negligent infliction of emotional distress; and negligent hiring, retention, training and supervision; and (2) Upstate Guns and Ammo, LLC ("Upstate") for negligent entrustment and negligence per se. Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Hospital, in the alternative, moves for summary judgment.

On March 31, 2019, this Court issued an order (Dkt. No. 43) (1) converting the Hospital's motion to dismiss to a motion for summary judgment, and denying the motion; and (2) granting Upstate's motion to dismiss. The purpose of this opinion is to explain the Court's reasoning.



On June 30, 2017, Plaintiff Timperio – then a first-year medical resident – was shot by Dr. Henry Bello, a former Hospital employee. Bello's employment had resigned in 2015 after an allegation that he had sexually harassed a Hospital employee. (Cmplt. (Dkt. No. 9) at 1-2 & n.2)2 On June 30, 2017, Bello returned to the Hospital. He was wearing a white doctor's coat and a Hospital identification badge, which had not been taken from him when his employment was terminated. (Id. at 2) Hidden under Bello's white coat was an AR-15 rifle and extra magazines, which he had purchased from Defendant Upstate, a firearms shop in Schenectady, New York. (Id. ) Bello was also carrying a Tropicana orange juice container filled with gasoline, which he used to set fire to the Hospital's 16th floor nursing station. (Id. )

After arriving at the Hospital on June 30, 2017, Bello shot Plaintiff; killed another doctor; and wounded four other members of the medical staff and a patient. (Id. at 1-2) The bullet that hit Plaintiff entered his abdomen and exited his right thigh, "requiring surgical procedures and treatment ... at Defendant Hospital and Mt. Sinai Hospital" from June 30, 2017 to July 21, 2017. (Id. at 2) After his rampage, Bello killed himself. (Id. at 3)

This was not the first shooting incident at the Hospital. (Id. ) On November 11, 2011, a gang member shot into the Hospital's emergency room, hitting a nurse and a security guard. (Id. ) Plaintiff alleges that, after the 2011 incident, the Hospital was on "notice that its security system was ineffective," but it did nothing to improve it. (Id. ) Plaintiff also alleges that the Hospital "failed to take proper action" after it learned that Bello had sexually harassed another Hospital employee and should have taken custody of Bello's identification badge when he resigned. (Id. )

As for Upstate, Plaintiff alleges that it sold Bello, a New York City resident, an AR-15 rifle on June 22, 2017. (Id. at 5) According to Plaintiff, that sale constitutes negligent entrustment in violation of 15 U.S.C. § 7903(B), because Upstate was on notice that AR-15 rifles are "the semi-automatic weapon of choice in ... mass death and casualty shootings." (Id. at 6-7) Plaintiff also alleges that Upstate was required to – but did not – contact the New York City Police Department before selling Bello the rifle to determine whether Bello had a New York City permit for the weapon. (Id. at 6)

I. Whether the Hospital's Rule 12(b)(6) Motion Should Be Converted to a Rule 56 Motion for Summary Judgment

In support of its motion to dismiss, the Hospital has submitted an affidavit from Debra Jarmon, a third-party administrator for workers compensation claims for the Hospital. Attached to Jarmon's affidavit are the following documents: (1) the Hospital's workers' compensation policy as of June 30, 2017 (Dkt. No. 36-2, at 3); (2) a workers' compensation claim the Hospital filed for Plaintiff on June 30, 2017 (Dkt. No. 36-2, at 29-32); (3) the New York State Workers' Compensation Board Notice of Case Assembly relating to Plaintiff (Dkt. No. 36-2, at 33); and (4) the New York State Workers' Compensation Board payment report for Plaintiff. (Dkt. No. 36-2, at 36)

Federal Rule of Civil Procedure 12(d) provides that "[i]f, on a motion under R. 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d).

Accordingly, where, as here, a court considering a motion to dismiss is "presented with matters outside the pleadings," there are "two options." Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002). The court either "exclude[s] the extrinsic documents," or it "convert[s] the motion to one for summary judgment," giving the parties adequate notice and an opportunity to "submit the additional supporting material contemplated by Rule 56." Id. (citing Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam ); Friedl v. City of N.Y., 210 F.3d 79, 83-84 (2d Cir. 2000) ; Morelli v. Cedel, 141 F.3d 39, 45-46 (2d Cir. 1998) ). " ‘Federal courts have complete discretion to determine whether ... to convert [a] motion [to dismiss] to one for summary judgment.’ " Abbey v. 3F Therapeutics. Inc., No. 06 Civ. 409 (KMW), 2009 WL 4333819, at *5 (S.D.N.Y. Dec. 2, 2009) (quoting Carione v. United States, 368 F. Supp. 2d 186, 191 (E.D.N.Y. 2005) ).

" ‘The essential inquiry in determining whether it is appropriate to convert a motion [to dismiss] into a motion for summary judgment is whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.’ " Ferguson v. Jones, 10 Civ. 817 (PGG), 2011 WL 4344434, at *2 (S.D.N.Y. Sept. 12, 2011) (alteration in original) (quoting Costor v. Sanders, No. 07 Civ. 11311 (NRB), 2009 WL 1834374, at *2 (S.D.N.Y. June 16, 2009) ).

Here, the Hospital requests that – if the Court finds it necessary to consider evidence outside the pleadings – its motion to dismiss be converted "to a summary judgment motion under FRCP 56." (Hospital Br. (Dkt. No. 35) at 8) Plaintiff does not oppose conversion. Indeed, Plaintiff has supplemented the record with his affidavit (see Kriss Decl., Ex. A (Dkt. No. 40)), and that affidavit makes clear that Plaintiff is familiar with the documents submitted by the Hospital. (See id. ¶¶ 7-8) Accordingly, the Hospital's motion to dismiss will be converted to a motion for summary judgment.

A. Summary Judgment Standard

Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007) ). " [W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.’ "

Lesavoy v. Lane, No. 02 Civ. 10162 (RWS), 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) ).

In deciding a summary judgment motion, the Court " ‘resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.’ " Spinelli v. City of N.Y., 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) ). However, a " party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... [M]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.’ " Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) ).

B. Rule 12(b)(6) Standard

Upstate's motion is governed by Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "In considering a motion to dismiss ... the court is to accept as true all facts alleged in the complaint," Kassner, 496 F.3d at 237 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) ), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006) ).

A. The Hospital's Motion for Summary Judgment

The Hospital argues that it is entitled to summary judgment because Plaintiff's claims are barred by the exclusive remedy provision of Workers' Compensation Law §§ 11 and 29(6).

"As a general rule, when an employee is injured in the course of his employment, his sole remedy...

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