Sanders v. The City of New York

LATISHA SANDERS, on behalf of herself and the estate of Cedric McEaddy, Plaintiff, v. THE CITY OF NEW YORK, THE STATE OF NEW YORK, THE UNITED STATES, JASON SHEPPARD, ZINC TECH LAB, DR. AGLAE CHARLOT, HAMMER, LIVEONNY, CORRECTION OFFICER MORRIS, BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, MARGARET CHIN, 67TH PRECINCT, NEW YORK POLICE DEPARTMENT, OFFICE OF CHIEF MEDICAL EXAMINER, DETECTIVE ORTIZ, ALTHEA COGGINS, R.N., and SANDRA SICULAR, M.D., Defendants.

No. 16-CV-6526-CBA-SJB

United States District Court, E.D. New York

June 15, 2021

REPORT & RECOMMENDATION

SANKET J. BULSARA, United States Magistrate Judge

Following the death of her minor son, Cedric McEaddy, plaintiff Latisha Sanders (“Sanders”), proceeding pro se, commenced this action against LiveOnNY (“LiveOn”), an organ procurement organization (“OPO”), and the Office of the Chief Medical Examiner (“OCME”), among other parties, for allegedly interfering with her right of access to her son's body and illegally harvesting his organs.^[1] All Defendants, except for LiveOn, have been dismissed or have settled with Sanders.^[2] On January 14 2021, LiveOn moved for summary judgment on the sole claim pending against it: loss of right of sepulcher.^[3]

The Honorable Carol Bagley Amon referred the motion to the undersigned for report and recommendation.^[4] Sanders alleges LiveOn communicated a 13-hour “hold” to the OCME directing it to halt any autopsy so that LiveOn could obtain consent for organ and tissue donation; in so doing, LiveOn delayed access to her son's body and violated her right of sepulcher.^[5] She also claims that LiveOn illegally harvested her son's organs.^[6] LiveOn contends that its “hold” had no effect on Sanders' access to her son's body, it did not harvest any organs or tissue and it is immune from liability for interfering with a right of sepulcher.^[7] Although there is no evidence of any harvesting, LiveOn is not entitled to immunity, and there are material issues of fact about the effect its “hold” had on Sanders' access to her son's body. As such, it is respectfully recommended that LiveOn's motion be denied.

STANDARD FOR SUMMARY JUDGMENT

A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see generally Celotex Corp. v Catrett, 477 U.S. 317, 322-23 (1986). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In determining whether summary judgment is appropriate, [the Court] must resolve all ambiguities and draw all reasonable inferences against the moving party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

In this case, Sanders is proceeding pro se, and although she had counsel earlier in the case, she responded to this motion without representation. Although the same standards for summary judgment apply, a “pro se litigant[ ] should be given special latitude in responding to [a summary judgment] motion.” Gonzalez v. Long, 889 F.Supp. 639, 642 (E.D.N.Y. 1995); accord Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (“[S]pecial solitude should be afforded pro se litigants generally, when confronted with motions for summary judgment.”); see also, e.g., Tomassi v. Nassau County, No. 15-CV-3652, 2019 WL 1440898, at *6 (E.D.N.Y. Mar. 15, 2019) (“Here, given Plaintiff's pro se status, the Court exercises its broad discretion and conducts a review of the record to evaluate whether the facts contained in Defendants' Rule 56.1 Statement are uncontroverted. The Court deems admitted only those facts which are supported by the admissible evidence and not controverted by other admissible evidence in the record.”), report and recommendation adopted, 2019 WL 1440154 (Mar. 29, 2019); Forbes v. Dressel, No. 06-CV-14387, 2009 WL 73121, at *3 (S.D.N.Y. Jan. 5, 2009) (“I have construed pro se plaintiff's pleadings liberally and resolved all ambiguities in his favor.”).

The movant bears the burden of “demonstrat[ing] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” in one of two ways. Fed.R.Civ.P. 56(c)(1). It may cite to portions of the record, “including depositions, documents, electronically stored information, affidavits or declarations, . . . admissions, interrogatory answers, or other materials.” Id. r. 56(c)(1)(A). Alternatively, it may “show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. r. 56(c)(1)(B).

In moving for summary judgment or answering such a motion, litigants in this District are required by the Local Rules to provide a statement setting forth purported undisputed facts or, if controverting any fact, responding to each assertion. See Local Civil Rule 56.1(a)-(b). In both instances, the party must support its position by citing to admissible evidence from the record. Id. r. 56.1(d); see also Fed. R. Civ. P. 56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a purported material fact). “The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

Where claims in opposing Rule 56.1 statements are “genuinely disputed, ” the Court will consider the evidentiary sources of the claims. Halberg v. United Behav. Health, 408 F.Supp.3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation), appeal withdrawn, 2020 WL 1987820 (2d Cir. Mar. 18, 2020). In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court cannot-as is true for the summary judgment motion as a whole-weigh evidence or assess the credibility of witnesses. See United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994). “Legal arguments are impermissible in any Rule 56.1 Statement and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL 1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont'l Cas. Co., No. 12-CV-412, 2013 WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule 56.1 statements and responses to each other's statements that mix factual assertions with legal argument and therefore fail to meet the requirements of Local Rule 56.1. The facts . . . are taken from those assertions contained in the Local Rule 56.1 statements that comply with Local Rule 56.1[.]” (citations omitted)). The Court must also disregard conclusory denials that lack citations to admissible evidence. Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain factual assertions, with citation to the record. They should not contain conclusions[.]”), aff'd, 56 Fed.Appx. 27 (2d Cir. 2003). Further, where the opposing party fails to specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement by the moving party “will be deemed to be admitted.” Local Civil Rule 56.1(c). The Court also does not give any consideration to hearsay, speculation, or inadmissible evidence in evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 Fed.Appx. 128, 130 (2d Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary judgment stage[.]”); Crawford v. Dep't of Investigation, No. 05-CV-5368, 2007 WL 2850512, at *2 (S.D.N.Y. Oct. 1, 2007) (“‘[A] non-moving party ‘must set forth specific facts showing that there is a genuine issue for trial;' he or she ‘may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.'” (quoting Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff'd, 324 Fed.Appx. 139 (2d Cir. 2009).^[8]

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Sanders resides in New York, New York.^[9] LiveOn is an OPO located in New York, New York.^[10]

The events underlying this lawsuit arise from the death of Sanders' son, Cedric McEaddy (“McEaddy”). McEaddy suffered a gunshot wound on May 18, 2016, and in the early hours of May 19, 2016, he was transported the Emergency Department of Brookdale University Hospital and Medical Center (“Brookdale”).^[11] He was pronounced dead at 12:33 AM, and the OCME was notified of McEaddy's death at 1:14 AM.^[12]Brookdale first contacted LiveOn about McEaddy's death at some time after 2:00 AM.^[13]It did not provide his name or other identifying information to enable LiveOn to move forward with potential organ and tissue donation.^[14] Brookdale again contacted LiveOn after 6:00 AM and, at that time, provided LiveOn with McEaddy's name and relevant medical history so that LiveOn could begin to determine whether McEaddy was a candidate for tissue donation.^[15] Brookdale did not provide LiveOn any information about McEaddy's next of kin, including Sanders' contact information.^[16]

At around 6:45 AM, LiveOn contacted the OCME and asked that office to place a “hold” on McEaddy's autopsy.^[17] The OCME agreed to place a hold until 10:00 AM.^[18]LiveOn was unable to determine McEaddy's next of kin.^[19] LiveOn called the OCME again at 7:42 PM to release the hold.^[20] The next day, May 20, the OCME performed...