Peterec-Tolino v. Ace Am. Ins. Co.

JOHN L. PETEREC-TOLINO, Plaintiff, v. ACE AMERICAN INSURANCE CO.; JENNIFER ALEXANDER;RYAN, ROACH & RYAN, LLP; JOHN D. DUNNE; JACQUELINE L. HEUBACH;WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP; ADAM ROSEN;CLAIRE UNDA; WALTER F. CIACII; DR. RONALD L. MANN;M.D-(I.M.E) N.Y.S. LICENSE #149230;STATE OF NEW YORK WORKERS COMPENSATION BOARD;DR. HEAD (IME) (WILLIAM); JANE DOE, JOHN DOE, JOHN DOE-M.D., Defendants.

20-CV-5354 (LLS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 28, 2020

ORDER OF DISMISSAL

LOUIS L. STANTON, United States District Judge:

Plaintiff, appearing pro se, brings this action asserting claims arising from his shoulder injury at work and related litigation, in both the Supreme Court of the State of New York, New York County, and the New York State Workers' Compensation Board (WCB). He sues the WCB, and attorneys, law firms, and medical examiners involved in those legal matters, alleging violations of his constitutional rights.¹ On August 14, 2020, Plaintiff paid the filing fee for this action. The Court dismisses the complaint for the reasons set forth below.

STANDARD OF REVIEW

The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh TenantsCorp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). A claim is "frivolous when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotation marks and citation omitted). The Court is obliged, however to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

BACKGROUND

The following facts are alleged in Plaintiff John Peterec-Tolino's complaint. Plaintiff worked as an electrician and mechanic and was a member of "Local Union #3 of the I.B.E.W." (Compl., ECF 2, at 27.) On May 2, 2016, Plaintiff injured his shoulder while working for an unidentified employer at a New York City transit location. (Id. at 28-29, 44.) Plaintiff immediately applied for workers' compensation benefits through Ace American Insurance Company, and within two weeks was receiving payment.² (Id. at 28.)

Plaintiff makes the following argument:

Once payments continue just over one year, the insurance carrier (and employer)are held as fully liable as to payments to the claimant . . . . This due to laches laws of any issues to be controverted should be realized well within a year's time, which is twelve whole months.

(Id.) Ace American Insurance Company paid Plaintiff through June 2017, and Plaintiff argues that "the insurance carrier was fully responsible and liable" because it paid him for more than one year. (Id.)

Plaintiff was "not interested" in filing a tort claim and did not promptly file a notice of claim with the City of New York. (Id. at 29). In 2017, attorney Walter Ciacci of the law firm Della, Mura & Ciacci, LLP, sought leave to file a late notice of claim on Plaintiff's behalf, and the request was granted. Plaintiff filed suit in the Supreme Court of the State of New York, New York County, under docket number 151874/200, against Defendants City of New York, New York City Transit, MTA Capitol Construction, Tully Construction, and MTA. (Id. at 31). The City of New York, represented by the law firm Elser, Moskowitz, Edelman, and Dicker, LLP, sought reconsideration of the order granting leave to file the late notice of claim, and the court granted the motion for reconsideration. Plaintiff appealed, and after "countless twists and turns," the parties agreed on the outlines of a settlement. (Id.) Ace American Insurance Company had a lien against any recovery that Plaintiff would obtain in that litigation.

Plaintiff alleges that his attorney instructed him to sign a nonbinding agreement, with the understanding that changes could be made later. Plaintiff lost confidence in attorney Ciacci, who gave Plaintiff "deliberate false info" and sent him a "conniving agreement." (Id. at 32-33.) Ciacci required Plaintiff to sign a multipage attorney-client stipulation as part of the settlement. Plaintiff realized that this was a "filthy trick" and fired Ciacci "immediately on June 28, 2019 via email." (Id. at 33.) Plaintiff then wrote directly to the state court judge, proposing to end his Workers' Compensation Board suit "only within [certain] limiting constraints." (Id.). Plaintiff contendsthat he never agreed "to drop . . . any claims against [Ace American Insurance Company] for clear cut violations unconstitutional under the Supremacy Clause." (Id. at 34.)

Ten years before this 2016 shoulder injury, Plaintiff had a "lumbar back and cervical neck" injury. (Id. at 51.) At some point, Plaintiff was accused of violating Worker's Compensation Law § 114-a, which governs false or misleading statements made in an application for benefits. Plaintiff notes that he was taking medication and suffering the effects of a concussion at the time he completed initial forms, and that he truthfully indicated that he had never had prior treatment for a shoulder injury.

WCB Administrative Law Judge (ALJ) Michael O'Connor allowed attorneys from Ryan, Roach, & Ryan, LLP, to introduce evidence that Plaintiff argues should not have been admitted, but rejected Plaintiff's relevant evidence. The WC § 114-a issue was resolved "in part" against Plaintiff, based primarily on medical testimony from Dr. Ronald L. Mann, despite the fact that Dr. Mann was "wholly non-credible." (Id. at 104-05.)

Plaintiff clarifies that "[t]his case is about the treatment [Plaintiff] suffered actually beginning on July 13, 2017, . . . from three law firms and their respective attorneys who colluded with each other," and with two independent medical examiners, the insurance carrier, and the WCB to violate Plaintiff's federal civil rights. (Id. at 41.)³ Plaintiff contends that they colluded to "violate [his] federal civil rights under 42 U.S.C. § 1983, Title VII, as well as . . . state causes of action." (Id.) He seeks damages.

DISCUSSION

A. New York State Workers Compensation Board

"[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity . . . ." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). "The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state." Id. The State of New York Workers Compensation Board (WCB) is an arm of the State of New York. See Palma v. Workers Compensation Bd., 151 F. App'x 20, 21 (2d Cir. 2005) (summary order); Levitant v. Workers Compensation Bd., No. 16-CV-6990 (ER), 2018 WL 1274734, at *4 (S.D.N.Y. Mar. 8, 2018).

New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). The Eleventh Amendment therefore bars Plaintiff's § 1983 claims against the New York State WCB from proceeding in federal court, and the Court dismisses Plaintiff's claims against the New York State WCB.

B. Claims under 42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a "state actor." West v. Atkins, 487 U.S. 42, 48-49 (1988). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (internal quotation marks omitted); American Mfrs. Mut. Ins. Co. v. Sullivan,526 U.S. 40, 50 (1999) ("Private conduct, no matter how discriminatory or wrongful, is generally beyond the reach of § 1983.") (quotations omitted). "State action requires both . . . the exercise of some right or privilege created by the State . . . and" the involvement of "a person who may fairly be said to be a state actor." Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks and brackets omitted).

The representation of a defendant by private counsel generally does not constitute the degree of state involvement or interference necessary to establish a claim under § 1983, even where the attorney is appointed by the court or employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of § 1983).

Plaintiff sues individual attorneys John D. Dunne, Jacqueline L. Heubach, Walter F. Ciacci, Adam Rosen, Claire Unda, and Jennifer Alexander, all of whom he alleges worked for private law firms. He also sues three private law firms: Ryan, Roach & Ryan, LLP; Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, and Della, Mura & Ciacci, LLP. The remaining defendants (Dr. Ronald L. Mann, "IME N.Y.S. License...