Rettek v. Ellis Hospital Ex Rel. Ellis Hospital , 362 F. App'x 210 ( 2010 )

09-0682-cv
Rettek v. Ellis Hospital, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27 th day of January, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 NORMA CUMMINGS RETTEK,
14
15 Plaintiff-Appellant,
16
17 -v.- 09-0682-cv
18
19 ELLIS HOSPITAL, LINDA BREAULT, as
20 Trustee of Ellis Hospital, MARK
21 BRESLIN, as Trustee of Ellis Hospital,
22 CHRISTINE CIOFFI, as Trustee of Ellis
23 Hospital, JAMES CONNOLLY, as Trustee
24 of Ellis Hospital, GARY EBELTOFT, as
25 Trustee of Ellis Hospital, HOWARD S.
26 FOOTE, as Trustee of Ellis Hospital,
27 D. JOSEPH GERSUK, as Trustee of Ellis
28 Hospital, MARSHALL G. JONES, as
29 Trustee of Ellis Hospital, PATRICK
1 KEHOE, as Trustee of Ellis Hospital,
2 ROBERT J. KENNEDY, as Trustee of Ellis
3 Hospital, ROBERT LIEBERS, as Trustee
4 of Ellis Hospital, JUDITH B. McILDUFF,
5 as Trustee of Ellis Hospital, DEBORAH
6 MULLANEY, as Trustee of Ellis
7 Hospital, ROBERT F. MURRAY, as Trustee
8 of Ellis Hospital, SARAH SCHERMERHORN,
9 as Trustee of Ellis Hospital, PAUL
10 SCUDDER, as Trustee of Ellis Hospital,
11 RICHARD TOLL, as Trustee of Ellis
12 Hospital, VINCENT J. ZECCOLA, as
13 Trustee of Ellis Hospital, DOMINICK
14 BIZZARRO, as Trustee of Ellis
15 Hospital, ROBERT A. BREAULT, as
16 Trustee of Ellis Hospital, GREG W.
17 BROWN, as former Trustee of Ellis
18 Hospital, THOMAS D’ANDREA, as former
19 Trustee of Ellis Hospital, HARRY
20 DEPAN, as former Trustee of Ellis
21 Hospital, THOMAS DONOVAN, as former
22 Trustee of Ellis Hospital, JOHN FLYNN,
23 as former Trustee of Ellis Hospital,
24 FRANK HARTE, as former Trustee of
25 Ellis Hospital, DALE HEDMAN, as former
26 Trustee of Ellis Hospital, JOHN JASKI,
27 as former Trustee of Ellis Hospital,
28 NORA JASKI, as former Trustee of Ellis
29 Hospital, BONNIE McGUIRE JONES, as
30 former Trustee of Ellis Hospital,
31 WILLIAM J. KENNEALLY, as former
32 Trustee of Ellis Hospital, BARBARA C.
33 LAWRENCE, as former Trustee of Ellis
34 Hospital, SUE LEHRMAN, as former
35 Trustee of Ellis Hospital, MARK M.
36 LITTLE, as former Trustee of Ellis
37 Hospital, RICHARD LIPMAN, as former
38 Trustee of Ellis Hospital, HUGH J.
39 MURPHY, as former Trustee of Ellis
40 Hospital, JOAN R. PIPITO, as former
41 Trustee of Ellis Hospital, ZYGMOND
42 SLEZAK, as former Trustee of Ellis
2
1 Hospital, SUZANNE SMITH, as former
2 Trustee of Ellis Hospital, JOHN
3 VanDELOO, as former Trustee of Ellis
4 Hospital, KIRBY VOSBURGH, as former
5 Trustee of Ellis Hospital, CHARLES
6 WILLIAMSEN, as former Trustee of Ellis
7 Hospital, GARY WOOD, as former Trustee
8 of Ellis Hospital, JAMES W. CONNOLLY,
9 as President and Chief Executive
10 Officer of Ellis Hospital, ANDREW M.
11 CUOMO, as Attorney General of the
12 State of New York and JOHN DOES 1-30,
13
14 Defendants-Appellees.
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16
17 APPEARING FOR APPELLANT: Daniel L. Kurtz (Sarah E.
18 McCallum, on the brief),
19 Skadden, Arps, Slate, Meagher &
20 Flom LLP, New York, NY.
21
22 APPEARING FOR APPELLEE Diana R.H. Winters, Assistant
23 ANDREW M. CUOMO: Solicitor General (Barbara D.
24 Underwood, Solicitor General,
25 and Benjamin N. Gutman, Deputy
26 Solicitor General, on the
27 brief), for Andrew M. Cuomo,
28 Attorney General of the State of
29 New York.
30
31 APPEARING FOR APPELLEES Daniel J. Hurteau, Nixon Peabody
32 ELLIS HOSPITAL, ALL LLP, Albany, NY.
33 CURRENT AND FORMER
34 TRUSTEES OF ELLIS
35 HOSPITAL AND JAMES
36 CONNOLLY, IN HIS
37 CAPACITY AS PRESIDENT
38 AND CHIEF EXECUTIVE
39 OFFICER OF ELLIS
40 HOSPITAL:
41
42 Appeal from a judgment of the United States District
43 Court for the Northern District of New York (Sharpe, J.).
3
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2 AND DECREED that the judgment of the district court be
3 AFFIRMED.
4
5 Plaintiff-appellant Norma Cummings Rettek appeals from
6 a final judgment of the United States District Court for the
7 Northern District of New York (Sharpe, J.), which granted
8 defendants-appellees’ motions to dismiss. We assume the
9 parties’ familiarity with the underlying facts, the
10 procedural history, and the issues presented for review.
11
12 We review de novo the dismissal of a complaint pursuant
13 to Federal Rule of Civil Procedure 12(b)(6). See Spagnola
14 v. Chubb Corp., 574 F.3d 64, 67 (2d Cir. 2009). We accept
15 “all well-pled factual allegations as true and draw all
16 reasonable inferences in the plaintiff’s favor to decide
17 whether the plaintiff has pled a plausible claim for
18 relief.” Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937,
19 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
20 544, 555 (2007))).
21
22 Having reviewed Rettek’s contentions on appeal and the
23 record of the proceedings below, we affirm for substantially
24 the reasons stated in the district court’s opinion. New
25 York law does not grant a plaintiff standing to enforce a
26 charitable gift restriction based solely on the plaintiff’s
27 familial relationship to the donor. The dispositive
28 distinction between this case and Smithers v. St. Luke’s-
29 Roosevelt Hospital Center, 281 A.D.2d 127, 128, 139, 140-41
30 (1st Dep’t 2001), is that Rettek is not the legal
31 representative of the donors’ estates. Accordingly, she
32 lacks standing to pursue this action and has no choice but
33 to rely on the Attorney General to enforce the gift
34 restrictions.
35
36 For two reasons, we decline to certify any question
37 related to Rettek’s standing to the New York Court of
38 Appeals. First, as discussed above, there is sufficient
39 clarity in New York law. See Doyle v. Am. Home Prods.
40 Corp., 583 F.3d 167, 172 (2d Cir. 2009) (“[C]ertification is
41 not necessary where precedent is clear and application of
42 law to fact requires no grand or novel pronouncements of New
43 York law.”). Second, the Court of Appeals has twice denied
44 leave to appeal in state cases that presented analogous
4
1 questions: Bd. of Educ. of Mamaroneck Union Free Sch. Dist.
2 v. Att’y Gen., 25 A.D.3d 637 (2d Dep’t), leave denied, 7
3 N.Y.3d 807 (2006), and In re Alaimo, 288 A.D.2d 916 (4th
4 Dep’t 2001), leave denied, 97 N.Y.2d 609 (2002). Cf. Doyle,
5 583 F.3d at 172 (declining to certify where “the state
6 courts have already thrown this case out, revived it, and
7 then thrown it out again . . . [thereby] express[ing] their
8 desire to be rid of it (twice) and it would be an imposition
9 on the state’s highest court for us to serve it up again”).
10
11 Accordingly, we hereby AFFIRM the judgment of the
12 district court.
13
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
5