Zeranti v. United States

167 F.Supp.3d 465

Kenneth Zeranti, Plaintiff,

v.United States of America and Erica L. Sargent, Ph.D., Defendants.

1:15–CV–00488 EAW

United States District Court, W.D. New York.

Signed March 7, 2016

Donald W. O'Brien, Jr., Woods, Oviatt, Gilman, LLP, Rochester, NY, for Plaintiff.

Michael S. Cerrone, U.S. Attorney's Office, Buffalo, NY, Mark G. Farrell, Law Offices of Mark G. Farrell & Associates, Williamsville, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Kenneth Zeranti (“Plaintiff”) brings this Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671 et seq., action against defendants United States of America and Erica L. Sargent, Ph.D., alleging the parties' negligence caused him “permanent or long-standing emotional harm.” (Dkt.1). Specifically, Plaintiff claims that Dr. Sargent, Plaintiffs psychotherapist at the Veterans Administration Hospital in Buffalo, New York (“VA”), engaged in a sexual, intimate relationship with Plaintiff, and then terminated the relationship “in an abrupt manner,” causing Plaintiff to suffer “severe and debilitating depression.” (Id. at ¶¶ 7–12).

Presently before the Court is the motion to dismiss brought by defendant United States of America (“Defendant”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). (Dkt.5). Defendant seeks dismissal of the two causes of action asserted by Plaintiff against Defendant: (1) a claim for vicarious liability based upon Dr. Sargent's negligence; and (2) a claim for negligent supervision and/or retention. For the following reasons, Defendant's motion is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff claims to be a disabled veteran who receives social security disability benefits and Medicare as a result of his “long-standing diagnosis of dysthymia and generalized anxiety disorder.” (Dkt. 1 at ¶ 5). As of October 13, 2011, Plaintiff was a patient at the VA Hospital in Buffalo, New York. (Id. at ¶ 4). Prior to that date, Plaintiff's therapist at the VA was a clinical psychologist named Eddie Venzor, Ph.D. (Id. at ¶ 6). On October 13, 2011, Plaintiff began treating with Dr. Sargent, and he continued to treat with Dr. Sargent until late May 2013. (Id. at ¶ 7).

According to Plaintiff, in February 2013, he and Dr. Sargent became “physically intimate.” (Id. at ¶ 9). Plaintiff claims he had sexual intercourse with Dr. Sargent. (Id. at ¶ 10). Plaintiff also alleges Dr. Sargent “spoke to Plaintiff in terms of a long-term relationship with him,” introducing Plaintiff to her daughters and making plans with Plaintiff to visit her family out-of-state. (Id. ). Plaintiff claims he became emotionally and physically dependent upon Dr. Sargent because of her “mismanagement of the psychotherapist-patient relationship” or the “transference phenomenon.” (Id. at ¶¶ 8–12).

Plaintiff alleges that, after mismanaging the “transference phenomenon” and commencing an “intimate personal relationship,” Dr. Sargent then terminated the relationship “without warning and in an abrupt manner,” causing Plaintiff to experience a “profound feeling of abandonment” and to suffer from “severe and debilitating depression” leading to “an emotional tailspin” and “a physically draining and unrelenting psychological downturn.” (Id. at ¶¶ 11–12). Plaintiff claims to suffer “significant emotional and psychological injuries, including serious exacerbation of his preexisting dysthymia and generalized anxiety disorder.” (Id. at ¶ 21).

Plaintiff alleges that Dr. Sargent was acting within the scope of her employment with Defendant “[a]t all times during her treatment of the Plaintiff, including the point at which the relationship became intimate and at the time the relationship was terminated.” (Id. at ¶ 13).

On July 15, 2014, Plaintiff submitted a claim to the Department of Veterans Affairs. (Id. at ¶ 14). This claim was rejected on May 6, 2015. (Id. at ¶ 15).

Plaintiff commenced this action on June 4, 2015. (Id. ). On August 13, 2015, Defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. (Dkt.5). Plaintiff fded opposition papers on September 4, 2015. (Dkt.8). On September 14, 2015, Plaintiff fded an affidavit of Dr. Sargent in further opposition to the pending motion to dismiss. (Dkt.10). Defendant fded reply papers on September 25, 2015. (Dkt.11). The Court held oral argument on the motion on December 15, 2015, and reserved decision. (Dkt.13). Dr. Sargent formally appeared in this case on December 29, 2015, by filing an answer and crossclaim against Defendant. (Dkt.14).

DISCUSSION

I. First Cause of Action—Vicarious Liability for Dr. Sargent's Negligence

Defendant seeks dismissal of the first cause of action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), based upon the argument that Dr. Sargent was not acting within the scope of her employment when she engaged in sexual relations with Plaintiff and, therefore, Defendant may not be held liable under the FTCA. (Dkt. 6 at 4–8).

“A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that the court retains jurisdiction.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). “[T]he district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Luckett v. Bure, 290 F.3d 493, 496–97 (2d Cir.2002). “Indeed, a challenge to the jurisdictional elements of a plaintiff's claim allows the Court to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Celestine v. Mt. Vernon Neighborhood Health Ctr., 289 F.Supp.2d 392, 399 (S.D.N.Y.2003), aff'd, 249 Fed.Appx. 851 (2d Cir.2007). “The court may consider affidavits and other materials beyond the pleadings but cannot rely on conclusory or hearsay statements contained in the affidavits.” Young v. United States, No. 12–CV–2342 ARR SG, 2014 WL 1153911, at *6 (E.D.N.Y. Mar. 20, 2014) (quotation omitted).

The “United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quotation omitted). Under the FTCA, the United States has provided a limited waiver of sovereign immunity for claims against the United States for money damages for injury or loss of property caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her office or employment. 28 U.S.C. § 1346(b). “For there to be liability, the employee's act must have taken place ‘while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ” Rosse v. United States, 110 F.Supp.3d 415, 421 (N.D.N.Y.2015) (quoting 28 U.S.C. § 1346(b)(1) ). In other words, if the federal employee was acting outside the scope of his or her employment, then the FTCA does not apply and the Court does not have jurisdiction over a vicarious liability claim asserted against the United States for its employee's negligence.

Here, the parties contest whether Dr. Sargent was acting within the scope of her employment with the VA. “In determining whether an employee was acting within the scope of employment, the court must look to the law of the state in which the conduct occurred.” Reynolds v. United States, 927 F.Supp. 91, 94 n. 4 (W.D.N.Y.1996). There is no dispute that the alleged negligence occurred in the State of New York and that New York tort law applies in this instance. (Dkt. 6 at 5–6).

“Under New York law, an employee's tortious acts fall within the scope of his employment if ‘done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.’ ” United States v. Tomscha, 150 Fed.Appx. 18, 19 (2d Cir.2005) (quoting Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979) ). On the other hand, conduct falls outside the scope of employment if done “solely for personal motives unrelated to the furtherance of the employee's business.” Catania v. Herbst, 916 F.Supp.2d 266, 272 (E.D.N.Y.2013) (quotation omitted); see also Galvani v. Nassau Cnty. Police Indemnification Review Bd., 242 A.D.2d 64, 68, 674 N.Y.S.2d 690 (2d Dep't 1998) (“An employer will not be held liable ... for actions which were not taken in furtherance of the employer's interest and which were undertaken by the employee for wholly personal motives.”). Under New York law, the scope of employment analysis considers five factors:

[1] the connection between the time, place and occasion for the act; [2] the history of the relationship between employer and employee as spelled out in actual practice; [3] whether the act is one commonly done by such an employee; [4] the extent to which the act departs from normal methods of performance; and [5] whether the specific act was one that the employer could reasonably have anticipated.

Riviello, 47 N.Y.2d at 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278.

Defendant contends that, as a matter of law, the conduct of Dr. Sargent—engaging in a sexual relationship with her psychotherapist patient—cannot fall within the scope of employment. Defendant correctly argues that New York courts have consistently rejected claims that sexual assaults “do not further an employer's business, even when committed within...