Zhang et al v. The City of New York et al
| Man Zhang and Chunman Zhang |
| The City of New York, The New York City Department of Correction, Rikers Island Facilities, New York City Health and Hospitals Corporation, Corizon Health, Inc., Bill de Blasio, Joseph Ponte, Ram Raju, Patsy Yang, Karey Witty, John and Jane Does 1-10, John and Jane Does 11-20 and John and Jane Does 21-30 |
| 1:2017cv05415 |
| July 17, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| John F. Keenan |
| Other Personal Injury |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
326
OPINION AND ORDER re: 317 LETTER MOTION for Leave to File Strike the Defendants' Reply Brief, or in the alternate, to file a sur-reply, and for permission to file a sur-reply for over 10 pages. addressed to Judge P. Kevin Castel from David Yan dated 5/15/2023. LETTER MOTION for Leave to File Excess Pages addressed to Judge P. Kevin Castel from David Yan dated 5/15/2023. filed by Chunman Zhang, Man Zhang, 313 FIRST MOTION to Preclude Notice of Cross Moti on to Preclude Expert Affirmation of Dr. Hess. filed by Corizon Health, Inc., The City of New York, New York City Health and Hospitals Corporation, 295 CROSS MOTION in Limine to exclude the Dr. Stanley J. Schnellers Expert Report a nd Affidavit from the evidence and precluding Dr. Stanley J. Schneller, M.D. from testifying at trial. filed by Chunman Zhang, Man Zhang, 315 FIRST MOTION to Strike Document No. [296 (14) Exh. N and (15) Exh. O] . filed by Corizo n Health, Inc., The City of New York, New York City Health and Hospitals Corporation, 283 FIRST MOTION for Summary Judgment. The claims against defendants NYDOC, Rikers Island Facilities, NYCHHC Does 11-20, and Corizon Does 21-30 are dis missed in their entirety with prejudice. Defendants' motion for summary judgment is granted in part as to the section 1983 claim. Plaintiffs' motion in limine to preclude expert testimony of Dr. Schneller is denied, and defendants' motions to preclude the affirmation of Dr. Hess and to strike to declaration of Man and Chunman Zhang are denied as moot. The Court declines to exercise supplemental jurisdiction over the state law wrongful death, and negligence and medical malpr actice claims against the remaining Municipal Defendants, and these claims are dismissed without prejudice. The Clerk is respectfully directed to terminate the motions (ECF 283, 295, 313, 315, 317) and close the case. SO ORDERED. John and Jane Do es 21-30 (in their Official Capacities), New York City Health and Hospitals Corporation, Rikers Island Facilities, The New York City Department of Correction, John and Jane Does 11-20 (in their Official Capacities) and John and Jane Does 11-20 (New York City Health and Hospitals Corporation Employees and Agents, in their individual capacities) terminated. (Signed by Judge P. Kevin Castel on 9/28/2023) (vfr)
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Filing
279
ORDER: terminating 278 Letter Motion for Extension of Time to File. There is no need for the motion because defendants have disclaimed an intent to move for summary judgment on the facts that underlie plaintiffs' Monell claim and the Court would not permit them to do so. That said, plaintiff is welcome to refile its papers under "the proper event." Letter motions (docs 276 and 278) are terminated. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/05/2023) (ama)
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Filing
273
OPINION AND ORDER: re: 263 MOTION to Amend/Correct to substitute Defendants GARRICK ELLISTON, TIMOTHY CHEESEMAN, HEIDI PATERSON, LISONYA WITHERSPOON, DESIREE VELEZ, CHOI CHAN, NATHANIEL BIALEK, EAMON LYNCH, WESTIN THOMPSON, NICOLE CLARK-GAINE S, SHALONDA SMITH, AMY MILLER, filed by Chunman Zhang, Man Zhang, 269 LETTER MOTION for Extension of Time to accept the Plaintiffs' Declarations along with exhibits (Dkt. 265 and 268) filed nunc pro tunc. addressed to Judge P. Kevin Cas tel from David Yan dated 10/28/2022. filed by Chunman Zhang, Man Zhang. Defendants may move for summary judgement on the following schedule: defendants' motion due February 1, 2023, plaintiffs' response due February 24, 2023, and defendan ts' reply due March 10, 2023. Plaintiffs' motion for leave to amend the complaint (Doc. 263) is DENIED. TheClerk is directed to terminate Docs. 263 and 269. SO ORDERED., ( Motions due by 2/1/2023., Responses due by 2/24/2023, Replies due by 3/10/2023.) (Signed by Judge P. Kevin Castel on 12/22/2022) (ama)
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Filing
255
ORDER: Plaintiffs' proposed voir dire, proposed verdict sheet, proposed jury instructions and their motions in limine shall be filed by November 18, 2022, with a copy of the voir dire, verdict sheet and jllly instructions delivered in MS Word f ormat. Also, by November 18, 2022, plaintiffs shall deliver to defendants in MS Word format their portion of the proposed Joint Pre-Trial Order. Defendant's proposed voir dire, proposed verdict sheet, proposed jury instructions, its motions in limine and its responses to plaintiffs' motions in limine shall be filed by December 6, 2022, with a copy of the voir dire, verdict sheet and any instructions delivered in MS Word format. Also, by December 6, 2022, defendants shall deliver in MS Word format to plaintiffs their portion of the proposed Joint Pre-Trial Order merged with plaintiffs' portion. By December 16, 2022, plaintiffs shall file their response to defendant's motions in limine. Also by December 16, 2022, the parties shall file the proposed Joint Pre-Trial Order. The Final Pre-Trial Conference will be held on December 21, 2022 at 2:30 p.m. The action will be referred to mediation for a session to be held during the month of October, 2022. (Motions due by 12/6/2022., Pretrial Order due by 12/16/2022., Responses due by 12/16/2022, Final Pretrial Conference set for 12/21/2022 at 02:30 PM before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 9/12/2022) (rro)
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Filing
251
OPINION & ORDER re: 202 MOTION to Set Aside , Objection to Honorable MJ Wang's Opinion and Order pursuant to Rule 72(a) filed by Chunman Zhang, Man Zhang, 236 MOTION to Set Aside 234 Memorandum & Opinion, Ru le 72(a) Objection to Hon. Wang's August 17, 2020 Order filed by Chunman Zhang, Man Zhang, 221 LETTER MOTION for Conference Rule 72(a) objection to Hon. Wang's 10/29/2019 Oral Order addressed to Judge John F. Keenan f rom David Yan dated 11/12/2019 filed by Chunman Zhang, Man Zhang. For the reasons set forth above, Plaintiffs' objections to Magistrate Judge Wang's oral and written orders of August 20, 2019, October 29, 2019, and August 17, 2020, are OVERRULED, and their motions to set aside the orders are DENIED. The Clerk of Court is directed to terminate the motions docketed at ECF Nos. 202, 221, and 236. (Signed by Judge John F. Keenan on 3/24/2021) (mro)
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Filing
242
ORDER: Before the Court makes that finding, however, once again delaying any resolution of this approximately three-and-a-half year case, the parties are hereby ORDERED to individually file letters of no more than three pages addressing whether th e Court has jurisdiction to decide any of the unresolved motions currently pending in this litigation. The parties' letters must be filed to the docket by no later than 5:00 p.m. on November 13, 2020. Sur-replies are not permitted. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 11/2/2020) (cf)
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Filing
234
MEMORANDUM OPINION & ORDER re: 196 MOTION for Reconsideration re; 190 Memorandum & Opinion, MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION PURSUANT TO LOCAL CIVIL RULE 6.3 OF THE UNITED STATES DISTRICT COURTS FOR THE SOUTHE RN AND EASTERN DISTRICTS OF NEW YORK filed by Corizon Health, Inc., Joseph Ponte, John and Jane Does 11-20, John and Jane Does 1-10, New York City Health and Hospitals Corporation, Bill de Blasio, The City of New York, Ram Raju, John an d Jane Does 21-30, The New York City Department of Correction, Patsy Yang, Karey Witty, Rikers Island Facilities It would be manifestly unjust to require Defendants to reimburse Plaintiffs' counsel for causing years of litigation over v ideo and audio recordings that were destroyed in the normal course, where Plaintiffs failed to give sufficient and reasonable notice to Defendants at any time before the ESI was destroyed. Accordingly, the Court finds that, on the facts and tortur ed procedural history in this case, reconsideration is GRANTED and Plaintiffs' spoliation motion is now DENIED in its entirety. Parties are to bear their own costs for this mess. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 8/17/2020) (rro)
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Filing
233
OPINION & ORDER re: 213 MOTION for Reconsideration re; 198 Memorandum & Opinion . filed by Chunman Zhang, Man Zhang. For the reasons set forth above, Plaintiffs' motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion docketed at ECF No. 213. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 7/20/2020) (cf)
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Filing
198
OPINION & ORDER re: 147 LETTER MOTION for Leave to File First Amended Complaint addressed to Judge John F. Keenan from David Yan dated 8/29/2018 filed by Chunman Zhang, Man Zhang, 171 MOTION for Leave to File Amended Compl aint . filed by Chunman Zhang, Man Zhang. For the reasons above, Plaintiffs have failed to remedy any of the deficiencies that the Court identified in their original complaint. Their motion for leave to amend is DENIED as such amendment wou ld be futile. Accordingly, Plaintiffs' claims arising under 42 U.S.C. § 1983 for violation of Zhang's Fourteenth Amendment due process rights are dismissed, with prejudice, as to Defendants NYCCO Does 1-10, de Blasio, Ponte, Raju, Yan g, and Witty. Plaintiffs' claims for fraudulent concealment and negligent supervision are also dismissed with prejudice. Finally, for the reasons above, Plaintiffs motion to add a defendant is DENIED as moot. The Clerk of Court is respectfully directed to terminate the motions docketed at ECF Nos. 147 and 171. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 9/19/2019) (cf)
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Filing
190
OPINION & ORDER re: 183 MOTION for Sanctions for Spoliation of Evidence. filed by Chunman Zhang, Man Zhang. Presently before the Court is Plaintiffs' Motion for Sanctions for alleged spoliation of evidence. (ECF 183). Specifical ly, Plaintiffs seek spoliation sanctions for Defendants' failure to preserve three categories of documents and information: 1) "documents of bed numbers, bed charts with numbers and the inmate's logbook" ("inmate location inf ormation"); 2) video surveillance footage; and 3) telephone recordings. Plaintiffs also seek sanctions because a correction officer failed to appear for her deposition. Plaintiffs request, in the alternative, (1) "an adverse influence," ; which appears to be a request for the Court to strike Defendants' pleadings and to enter a default judgment; or (2) an adverse inference instruction. Plaintiffs also seek costs and attorneys' fees. For the reasons set forth below, Plainti ffs' motion is GRANTED to the extent it seeks attorneys' fees and costs. Plaintiffs' request for entry of a default judgment or an adverse inference instruction is DENIED. Because Plaintiffs have established relevancy and prejudice for the loss of the video surveillance footage and telephone recordings, spoliation sanctions are warranted. Plaintiffs request, in the alternative, (1) "an adverse influence" [sic], which appears to be a request for entry of a default judgmen t; or (2) an adverse inference instruction. Plaintiffs also seek costs and attorneys' fees. As discussed above, because nothing in the record suggests that the Defendants destroyed evidence in bad faith or with an intent to deprive, Plaintiffs a re not entitled to a default judgment or adverse inference. Plaintiffs are entitled, however, to the attorneys' fees and costs Plaintiffs incurred from May 1, 2018 to the present in litigating the issues of the video surveillance footage and th e telephone recordings, including those Plaintiffs incurred in connection with the instant motion. As to the amount of the award, Plaintiffs shall submit their fee application by October 4, 2019. Defendants may submit a challenge to Plaintiffs' calculation by October 18, 2019 and Plaintiffs may reply by October 25, 2019. A status conference will be held on October 29, 2019 at 10:00 a.m. at the Daniel Patrick Moynihan Courthouse, 500 Pearl St., Courtroom 20D and further set forth in this Order. (Signed by Magistrate Judge Ona T. Wang on 8/20/2019) (rro)
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Filing
148
OPINION & ORDER re: 142 LETTER MOTION for Conference re: 141 Order on Motion for Discovery Motion for Reconsideration of the Court's 8/27/2018 Order addressed to Magistrate Judge Ona T. Wang from David Yan dated 8/28/2018. f iled by Chunman Zhang, Man Zhang. Plaintiffs' motion for reconsideration (ECF 142) of the Court's Order directing Plaintiffs to produce all correspondence with Mr. Requena is DENIED. Accordingly, Plaintiffs shall produce to Defendants all correspondence between Plaintiffs' counsel, including David Yan, Esq., and Juan Requena, aka "Carlos," by close of business on August 31, 2018. If counsel fails to comply with this Order, counsel will be assessed a sanction of &# 036;50 per day, beginning on September 1, 2018, for each day that counsel fails to comply with this Order. See Fed. R. Civ. P. 16(f); 28 U.S.C. § 1927. With respect to Plaintiffs' counsel's failure to schedule the deposition of Mr. Req uena, counsel for both parties are reminded that the fact and expert discovery deadline is September 28, 2018. If Mr. Requena's deposition is not completed by the discovery deadline, the Court may entertain a motion for sanctions, including one seeking preclusion, with respect to Mr. Requena's testimony. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 8/30/2018) (rro)
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Filing
126
OPINION & ORDER re: 62 MOTION to Dismiss filed by Corizon Health, Inc., Joseph Ponte, New York City Health and Hospitals Corporation, Bill de Blasio, The City of New York, Ram Raju, Patsy Yang, Karey Witty. For the reaso ns stated above, Defendants' motion is GRANTED in part, and DENIED in part. Defendants' motion to dismiss Plaintiffs' Fifth Amendment; Eighth Amendment; New York constitutional; loss of society, services, and parent guidance; and i ntentional and negligent infliction of emotional distress claims is GRANTED with prejudice. Defendants' motion to dismiss Plaintiffs' Fourteenth Amendment equal protection; Fourteenth Amendment due process (as to NYCCO Does 1-10, Mayor de Blasio, Mr. Ponte, Dr. Raju, Dr. Yang, and Mr. Witty); ADA; Rehabilitation Act; negligent supervision; duty to supervise and train employees and staff claims is GRANTED without prejudice. Defendants' motion to dismiss Fourteenth Amendment due process claims against NYCHHC Does 11-20, Corizon Does 21-30, and Municipal Defendants is DENIED. Defendants' motion to dismiss wrongful death and negligence and malpractice claims is DENIED. The Clerk of Court is respectfully directed to terminate the motion docketed at ECF No. 62. SO ORDERED. (Signed by Judge John F. Keenan on 6/28/2018) (anc)
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Filing
118
OPINION AND ORDER: Plaintiff's request to extend the discovery deadline to August 3, 2018 (ECF 115) is GRANTED. Defendants' renewed motion to bifurcate discovery related to Plaintiffs' Monell claims, and to stay any Monell discover y pending resolution of Plaintiffs' underlying claims (ECF 106), is GRANTED. Plaintiff's request to take the following depositions is GRANTED. By June 18, 2018, Defendants shall file a letter with the Court with the names and agreed-upo n deposition dates of these officers. Plaintiff's request that Defendants produce PT Maria Christina Pillora for deposition is DENIED. Defendants shall respond to Plaintiff's pending discovery requests, identified in Plaintiffs June 1, 2018 Letter (ECF 115, at 1), by June 21, 2018. Defendant's filing at ECF 107 is hereby stricken from the docket. Defendants are to produce to Plaintiff a revised privilege log that complies with the Federal Rules of Civil Procedure and the Lo cal Rules of the Southern District of New York and serve it on Plaintiff by June 21, 2018. Documents may not be withheld from production based on a claim of confidentiality; confidential documents must be produced pursuant to an agreed-upon protec tive order. If Defendants fail to comply with this Order, the Court will entertain a motion for waiver of any and all assertions of privilege. Counsel for the parties shall attend a discovery conference on July 12, 2018 at 11:00 a.m. at the Daniel Patrick Moynihan Courthouse, 500 Pearl St., Courtroom 20D, to address the status of discovery. If there are any discovery disputes to be addressed, the parties shall file a joint letter on July 6, 2018 setting forth what efforts were made to resol ve the disputes without court intervention and the parties' respective positions on each issue, and which attaches any material that would aid the Court's resolution of the dispute(s). The Clerk of the Court is respectfully directed to c lose Docket Items 106 and 115. (Discovery due by 8/3/2018., Discovery Hearing set for 7/12/2018 at 11:00 AM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Ona T. Wang.) (Signed by Magistrate Judge Ona T. Wang on 6/5/2018) (rro)
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