Allah v. The City of New York

BB en Baas Ha RD

UNITED STATES DISTRICT COURT . Se Ee ie NY [slaty

EASTERN DISTRICT OF NEW YORK □□ Oe ee

X KW DEC 17 209 *

BISHME ALLAH; NAKISHA CLAIBORNE;

NAKISHA CLAIBORNE, for MINOR BROOKLYN OFFICE

CHILD, A.A.,

Plaintiffs,

-against- NOT FOR PUBLICATION

MEMORANDUM AND ORDER

THE CITY OF NEW YORK; GLADYS 15-CV-6852 (CBA) (LB)

CARRION, Commissioner of the New

York City Administration for Children’s

Services; MARGARET ADEYELE, a Child

Protective Specialist Supervisor for the New

York City Administration for Children’s

Services; MITCHELL WALKER, a Child

Protective Specialist Supervisor for the New

York City Administration for Children’s

Services; BAAJNARINE SINGH, a Child

Protective Specialist for the New York City

Administration for Children’s Services;

MICHELLE GLATT, an Attorney for the

New York City Administration for Children’s

Services; THE STATE OF NEW YORK;

MARY R. O’DONOGHUE, a Judge for the

Family Court of the State of

New York, County of Queens,

Defendants.

tereter arenes resurrect neem nice

BISHME ALLAH,

Plaintiff,

-against-

The STATE OF NEW YORK; PAMELA LEIGH

BISHOP, an Assistant District Attorney, MARY

R. O’ DONOGHUE, a Judge for the Family Court

of the State of New York, County of Queens; The

CITY OF NEW YORK; GLADYS CARRION,

Commissioner of the New York City

Administration for Children’s Services;

WILLIAM J. BRATTON, Commissioner of the

New York City Police Department; JOHN

PHELAN, a Detective for the New York City

Police Department; MARGARET ADEYELE, a 16-CV-333 (CBA) (LB)

Child Protective Specialist Supervisor for the New

York City Administration for Children’s

Services; DAPHNE ALTEMA, a Child

Protective Specialist Supervisor for the New York

City Administration for Children’s Services;

BAAJNARINE SINGH, a Child

Protective Specialist for the New York City

Administration for Children’s Services;

TERRI WALKER, a Child Protective Manager

for the New York City Administration for

Children’s Services; NORTH SHORE-LONG

ISLAND JEWISH HEALTH SYSTEM;

MICHAEL J. DOWLING, President and

Chief Executive Officer for the North Shore-

Long Island Jewish Health System; JAMIE

HOFFMAN-ROSENFELD, a Physician for the

North Shore-Long Island Jewish Health System,

Defendants.

ener □□□ nenenecenenenenee XK

AMON, United States District Judge:

Plaintiff Bishme Allah filed this action pursuant to 42 U.S.C. § 1983 and New York law

against various officials alleged to be involved in his arrest, prosecution, and subsequent Family

Court proceedings. (D.E. # 74 (“Third Amended Complaint,” or “TAC”).) On September 28,

2018, this Court issued a Memorandum and Order granting a motion to dismiss brought by

defendants Northwell Health and Dr. Jamie Hoffman-Rosenfeld (collectively, the “Northwell

Defendants”), and defendants Richard Brown and Leigh Bishop, (the “D.A. Defendants”), largely

based on the doctrines of absolute and qualified immunity. (D.E. # 108 (“M&O”).) On October

26, 2018, Allah filed a motion asking the Court to reconsider the portion of the M&O determining

that the Northwell Defendants were entitled to qualified immunity on his federal and state-law

claims, arguing: (1) that the Court improperly took judicial notice of documents extraneous to the

Amended Complaint; (2) that qualified immunity at the motion to dismiss stage cannot be granted

“unless it can be found [o]n the face of the complaint”; and (3) that the Court failed to accept as

true several allegations that were pleaded in his Amended Complaint. (D.E. # 113 (“Mot.”).) On

January 4, 2019, Allah brought a motion to stay the proceedings pending the resolution of the

underlying state Family Court proceedings. (D.E. #121.) For the reasons stated below, Allah’s

motion for reconsideration is denied,’ and his motion to stay is granted with respect to the

remaining defendants.

DISCUSSION

Because the Court assumes familiarity with the facts recounted thoroughly in the

September Memorandum and Order, (M&O at 2-9), background will be given only as is relevant

to the discussion of each of Allah’s challenges.

I. Motion for Reconsideration

The decision to grant or deny a motion for reconsideration is within the sound discretion

of the district court. See Devlin v. Transp. Comme’n Int’] Union, 175 F.3d 121, 132 (2d Cir.

1999). The standard for granting reconsideration is “strict, and reconsideration will generally be

denied unless the moving party can point to controlling decisions or data that the court

overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)

(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). To preserve scarce

Northwell Defendants, in addition to their arguments on the substance of Allah’s motion for reconsideration,

correctly point out that the motion was untimely. Local Rule 6.3 requires that a motion for reconsideration be filed

“fourteen (14) days after the entry of the Court’s determination of the original motion[.]” Allah’s motion was filed

on October 26, 2018—28 days after the Court’s M&O was issued. (See D.E. # 108, 113.) Allah urges the Court to

construe his motion as one under Federal Rule of Civil Procedure 59(e), (see D.E. # 109, 117), which allows for “28

days after the entry of judgment.” Fed. R. Civ. P. 59(e). However, because Rule 59(e) “applies only to a final

‘judgment,’ and not the non-final order which is the subject of plaintiff's instant motion,” it is inapplicable here.

Boddie v. New York State Division of Parole, No. 08-CV-911 (KAM), 2009 WL 1938981, at *2 n.3 (E.D.N.Y. July

7, 2009), Although failing to file the reconsideration motion by Rule 6.3’s deadline is alone a sufficient reason to

dismiss it, the Court will proceed to articulate why it fails on the merits.

judicial resources and to avoid piecemeal litigation, a motion for reconsideration is “narrowly

construed and strictly applied so as to avoid repetitive arguments on issues that have been

considered fully by the Court.” Enigwe v. Zenk, No. 03-CV-854 (CBA), 2007 WL 2713849, at

*7 (E.D.N.Y. Sept. 14, 2007) (quoting Dellefave v. Access Temps., Inc., No. 99-CV-6098, 2001

WL 28677, at *1 (S.D.N.Y. Mar. 22, 2001)); see also Shrader v. CSX Transp. Inc., 70 F.3d 255,

257 (2d Cir. 1995) (stating that reconsideration “should not be granted where the moving party

seeks solely to relitigate an issue already decided”). In addition, a party is not permitted to

“advance new facts, issues or arguments not previously presented to the Court” on a motion for

reconsideration. Caribbean Trading & Fid. Corp. v. Nigerian Nat'l] Petroleum Corp., 948 F.2d

111, 115 (2d Cir. 1991) (quoting Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)).

A. Judicial Notice

Allah first argues that the Court erred by taking “judicial notice of extraneous materials,

for the truth of the matter[] asserted.” (Mot. at 2446.7) Specifically, Allah takes issue with the

Court’s use of two documents when determining that the Northwell Defendants were entitled to

qualified immunity: (1) the August 9, 2017, opinion of the Queens County Family Court; and (2)

the Medical Assessment by Dr. Hoffman-Rosenfeld. The Court will address each in turn.

1) Family Court Opinion

On the August 9, 2017, Judge Jolley of the Queens County Family Court issued an opinion

after hearing testimony from Allah, Hoffman-Rosenfeld, and several other witnesses, that

concluded that the New York Administration for Children’s Services had “proven by a

preponderance of the evidence that [J.R.] sustained injuries, which would not ordinarily occur but

for the acts or omissions of another.” (See D.E. # 97-2 (“Family Court Op.”) at 7.) Judge Jolley

2 Because of the pagination error in Allah’s brief, the Court will cite to the ECF page numbers for this document.

also found Hoffman-Rosenfeld “credible,” (id. at 4, 6, 8), and that “based on Doctor Hoffman

Rosenfeld’s expert testimony, [J.R.’s] injuries were acute, fresh and recently inflicted,

meaning close in time to when he was admitted to the hospital on November 11, 2014,”

(id. at 8).

Allah argues that the Court erred during its qualified immunity analysis by taking judicial

notice of the opinion, as Allah describes it, “for the truth of the matters asserted” in that proceeding,

when it is proper to take notice only “to establish the fact of such litigation and related filings.”

(Mot. at 2446). The Court first notes that Allah expressly consented to the Court consulting the

Family Court opinion in a supplemental brief submitted on the issue of collateral estoppel, stating

that he “accepts that this Court has the authority to review and consider the underlying family court

order in deciding this 12(b)(6) motion.” (D.E. # 105 at 1.)

Regardless, the Family Court opinion was not dispositive to the Court’s conclusion that the

Northwell Defendants were entitled to qualified immunity and therefore is not a ground for

reconsideration of that conclusion. With respect to the federal claims, the Court concluded—

without reference to the Family Court opinion—that Hoffman-Rosenfeld’s assessment of J.R. and

her reporting of suspected abuse could not be deemed “contrary to clearly established law.” (M&O

at 33.) With respect to the state-law claims, the Court concluded—again without discussing the

Family Court opinion—that based on the allegations as presented in the Amended Complaint,

Hoffman-Rosenfeld was entitled to qualified immunity under the CPSA. (Id. at 38.) The portions

of the analysis where the Court discussed the Family Court opinion were both alternative

justifications for finding qualified immunity. (See M&O at 33-34 (“Secondly, even if the rights

at issue were clearly defined, dismissal of the federal claims would still be warranted given the

objective reasonableness of Hoffman-Rosenfeld’s assessment.”) (emphasis added), 38 (“Hoffman-

Rosenfeld is also entitled to good faith immunity because Allah has failed to allege that she acted

with willful misconduct or gross negligence.”) (emphasis added).) Without consulting the Family

Court opinion, the result would not be different. Accordingly, the Court declines to reconsider its

ultimate conclusion based on the complained-of discussion of the Family Court opinion.

2) Dr. Hoffman-Rosenfeld’s Medical Assessment of J.R.

Allah also takes issue with the Court referencing information from Hoffman-Rosenfeld’s

documented medical assessment of J.R. in its decision. Again, Allah consented to the Court doing

so in his motion papers. (See D.E. # 97 at 9 (‘Plaintiff is not opposed to judicial notice of the

MOU (Exhibit B), given its numerous incorporation into Defendants’ 12(b)(6) Motion, and

Plaintiff's responses in his 12(b)(6) arguments. Plaintiff also does not contest the inclusion of

Exhibit C, three pages of Dr. Hoffman-Rosenfeld’s assessment, as long as it is redacted when filed

wee)

And even if Allah had not consented, it is well settled that “‘when a plaintiff chooses not

to attach to the complaint or incorporate by reference a [document] upon which it solely relies and

which is integral to the complaint,’ the court may nevertheless take the document into

consideration in deciding the defendant’s motion to dismiss, without converting the proceeding

into one for summary judgment.” Int’] Audiotext Network, Inc. v. American Tel. & Tel. Co., 62

F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48

(2d Cir. 1991)). Allah’s Amended Complaint extensively refers to and quotes from Hoffman-

Rosenfeld’s medical assessment, (see TAC JJ 102-04, 106, 108, 114, 116, 142, 171, 173-75, 178,

181), making it “integral” to the pleading and appropriate for the Court to consider when deciding

the motion to dismiss. See Global Network Comme’n, Inc. v. City of New York, 458 F.3d 150,

3 Allah points to one recent case, Campbell v. Hanson, No. 17-CV-1024 (ALC), 2018 U.S. Dist. LEXIS 111215

(S.D.N.Y. June 29, 2018), which states that “[a]s a general matter, the Court may not take judicial notice of medical

156 (2d Cir. 2006) (stating that an extrinsic document is “integral to the Complaint” when the

. “plaintiff[] rel[ies] on the terms and effect of [the] document in drafting the complaint”); Weaver

v. City of New York, No. 13-CV-20 (CBA), 2014 WL 950041, at *2 (E.D.N.Y. Mar. 11, 2014)

(“When ruling on a Rule 12(b)(6) motion to dismiss a complaint . . . a court may consider . . .

‘documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in

bringing suit.’” (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 153 (2d Cir. 2002))). Allah

is therefore not entitled to reconsideration on the ground that the Court used the document. The

Court was entitled to do so because he had made the document integral to his complaint.

B. Qualified Immunity on a Motion to Dismiss

Allah next contends that even if the Court was permitted to consult the Family Court

opinion and medical assessment, “[t]here is no case law which permits the use of external

materials, even with judicial notice, on deciding the issue of Qualified Immunity [on a motion to

dismiss].” (Mot. at 2449.) Instead, he argues that a finding of qualified immunity on a motion to

dismiss is appropriate only if it can be found on “the face of the complaint.” (Id.) The Second

Circuit has never held that the typical procedure for evaluating a 12(b)(6) motion, which includes

consideration of “documents appended to the complaint or incorporated by reference, and to

matters of which judicial notice may be taken,” Tarshis v. Riese Org., 211 F.3d 30, 39 (2d Cir.

2000), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), does

not apply when analyzing whether a defendant is entitled to qualified immunity. In fact, it recently

stated the opposite to be true:

records.” Id, at *14—*15. The Court first notes that this is not a controlling decision that would require reconsideration.

Moreover, Campbell also noted the precedent cited here, and stated that it was not argued that the plaintiff “had

possession of, or relied upon” the particular medical records at issue when drafting the complaint. See id. It is

therefore distinguishable—here, it is clear that Hoffman-Rosenfeld’s assessment was extensively relied upon and

central to the allegations in the Amended Complaint.

We review de novo a district court’s denial of a motion for judgment on the pleadings

based on qualified immunity. See Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.

2003); Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2015). We apply the same standard

as that applicable to a motion under Rule 12(b)(6), accepting the allegations

contained in the complaint as true and drawing all reasonable inferences in favor of

the nonmoving party. Anderson, 317 F.3d at 197. However, when the record

includes a video that the parties concede is authentic and accurate, as is the case here,

we view the allegations of the complaint as true only “to the extent that they are not

contradicted by video evidence.” See Garcia, 779 F.3d at 88.

Kass v. City of New York, 864 F.3d 200, 205-06 (2d Cir. 2017). Allah attempts to distinguish

Kass by arguing that “Kass was a 12(c) motion, where there was no dispute between parties as to

the facts of the case.” (Mot. at 2450.) His attempt to find daylight between Rule 12(b)(6) and 12(c)

is futile; “[t]he standard for addressing a Rule 12(c) motion for judgment on the pleadings is the

same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v.

Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Allah also cites to McKenna v. Wright, 386

F.3d 432 (2d Cir. 2004), which does indeed state that “the facts supporting [qualified immunity

must] appear on the face of the Complaint... .” (Id. at 436.) However, a closer examination of

that passage in context reveals that the court is simply reciting the 12(b)(6) standard more

generally:

Of course, a defendant presenting an immunity defense on a Rule

12(b)(6) motion instead of a motion for summary judgment must

accept the more stringent standard applicable to this procedural

route. Not only must the facts supporting the defense appear on the

face of the complaint, but, as with all Rule 12(b)(6) motions, the

motion may be granted only where it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim that would

entitle him to relief.

Id. (emphasis added) (internal quotation marks and citation omitted). McKenna does not explicitly

hold that on a motion to dismiss a finding of qualified immunity is confined to the allegations in

the complaint and may not consider documents integral to it; that case does not concern documents

integral to the complaint. In light of Kass and without Allah pointing to any controlling precedent

stating otherwise, Allah’s argument is without merit.

C. Allah’s Remaining Arguments

In a section entitled “Controlling Factual Mat[t]ers that Might Reasonably Alter the

Decision of the Court,” Allah contests three additional conclusions that the Court made when

deciding the motion to dismiss. (Mot. at 2451-2454.)

First, Allah contends that the Court erred when it determined that Hoffman-Rosenfeld did

not diagnose J.R. with Shaken Baby Syndrome (“SBS”) or Abusive Head Trauma (“AHT”) in her

medical assessment. (Mot. at 2452-53.) Allah’s argument is limited to the fact that his Amended

Complaint “repeatedly states” that Hoffman-Rosenfeld found SBS and AHT in her assessment,

and that the Court presumably must credit such allegations on a motion to dismiss. In its M&O,

the Court explained why it did not do so:

First, although Allah makes much of the fact that Hoffman-Rosenfeld’s

purported diagnosis of SBS was incorrect and that a diagnosis of SBS inevitably

points to the “last caregiver,” which in this case was him, (Supp. Opp. at 4), the

allegations that Hoffman-Rosenfeld diagnosed SBS are contradicted by all of the

documentary evidence that Allah has conceded that the Court may consider in

deciding this motion. Hoffman-Rosenfeld’s medical assessment of J.R. does not

mention SBS, the Press Release issued by the D.A. Defendants announcing Allah’s

arrest and describing J.R.’s injuries as conveyed to police officers by Hoffman-

Rosenfeld does not mention SBS, and the 25-page Family Court opinion, including

the Family Court’s summary of Hoffman-Rosenfeld’s testimony does not mention

SBS.

* % *

Because the allegations that Hoffman-Rosenfeld diagnosed J.R.’s injuries

as the result from SBS are contradicted by the material that the Amended Complaint

is based upon, it is not necessary to accept the allegations as true that Hoffman-

Rosenfeld caused Allah to be wrongly targeted by the investigation by her diagnosis

of SBS. See L—7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)

(holding that, for the purposes of deciding a motion to dismiss, courts take

allegations as true “unless contradicted by . . . documentary evidence . . . from the

exhibits attached” to the complaint); TufAmerica, Inc. v. Diamond, 968 F. Supp.

2d 588, 592 (S.D.N.Y. 2013) (“Ifa document relied on in the complaint contradicts

allegations in the complaint, the document, not the allegations, control, and the

court need not accept the allegations in the complaint as true.” (internal quotation

marks omitted)); Koulkina v. City of N.Y., 559 F. Supp. 2d 300, 329 (S.D.N.Y.

2008) (“The exhibits to the [aJmended [c]omplaint contradict the[ ] allegations

[contained in the amended complaint] . . . . [SJuch allegations cannot survive a

motion to dismiss when they are contradicted by plaintiffs’ own exhibits.”).

(M&O at 34-36.) Allah also fails to recognize that the Court followed this discussion with an

alternative analysis, where it concluded that “[e]ven if the Court were to accept as true that

Hoffman-Rosenfeld diagnosed that J.R.’s injuries were caused by SBS, it would still be

insufficient to preclude qualified immunity.” (M&O at 36.) Accordingly, there is no cause for

reconsideration.

Second, Allah contends that the Court erred when it did not credit the allegations in the

Amended Complaint that Hoffman-Rosenfeld “was acting here, in her public role as a child abuse

investigator as the Medical Director of the Queens Child Advocacy Center,” for the purposes of

evaluating immunity under the CPSA, and that she was a “final policy maker, tasked with training,

and provides the final word on findings of child abuse for the City of New York,” for the purposes

of determining municipal liability under Monell v. Department of Social Services, 436 U.S. 658

(1978). (Mot. at 2453-54.) However, the Court was not required to accept as true these legal

conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Instead,

in conducting its own analysis, the Court determined: (1) that the amended complaint had “not

alleged facts that Hoffman-Rosenfeld directed the investigation or ‘determined culpability,” but

instead “allege[d] that Hoffman-Rosenfeld examined J.R., reported what she saw, and testified” as

to her findings, which did not preclude her ability to claim good-faith immunity under the CPSA,

(M&O at 37-38); and (2) that Hoffman-Rosenfeld “was not a final policy maker” of Northwell

Health, which was one of several reasons that Allah was unable to succeed on his Monell claim,

10

(M&O at 42-44), Allah does not challenge these analyses directly—and without further argument

about why Iqbal should not have been followed here, the Court sees no need to reconsider them.

Finally, Allah, in opposing qualified immunity, restates his allegation that Hoffman-

Rosenfeld’s medical assessment was “far from reasonable” and instead was an “[i]ntentionally,

and [k]nowingly and [r]eckless forensic investigation.” (Mot. at 2554.) However, Allah has not

sought reconsideration of the Court’s preceding and independent conclusion that Allah has

identified no clearly defined rights that Hoffman-Rosenfeld violated. (M&O at 33.) In the

complaint, Allah alleges that Hoffman-Rosenfeld “crossed a line from lawful to unlawful and

unconstitutional conduct” (a conclusory allegation), (TAC § 36), and “did so by utilizing what is

now believed to be, among physicians versed in investigating, assessing and diagnosing child

abuse matters, the ‘junk science’ of ‘triad symptoms’ leading her, through her intentional use of

such ‘junk science’, to make false diagnoses of Shaken Baby Syndrome (‘SBS’) or as currently

denominated Abusive Head Trauma (‘AHT’).” (TAC 4 37.) Allah has offered no further

persuasive argument for why the alleged actions, assuming Hoffman-Rosenfeld made the alleged

diagnosis at all, would violate clearly defined rights, so the Court will not reconsider its conclusion

that they do not. As that conclusion was independently sufficient to support the Court’s finding

of qualified immunity, the Court sees no reason to reconsider its subsequent assessment of the

reasonableness of Hoffman-Rosenfeld’s examination. (Id. (“Secondly, even if the rights at issue

were clearly defined, ....” (emphasis added)).) Allah offers no further case law to persuade the

Court to reconsider its M&O on this front. Allah only gestures to his own Third Amended

Complaint and alludes to the conclusory allegations in that complaint to imply that the Court had

erred: “Northwell Defendants wrongly allege that (a) Dr. Hoffman Rosenfeld is only a medical

professional who (b) conducted a reasonable investigation. Those are not the facts alleged in □□□

11

TAC.” (Mot. at 2452.) The implied argument would seem to be that Hoffman-Rosenfeld was

more than a medical professional and that she conducted an unreasonable investigation, but both

allegations are legal conclusions that the Court will not credit. Such bare argumentation on

reconsideration has not persuaded the Court to reconsider its finding of qualified immunity.

And in any event, Allah’s allegations—the ones remaining once the Court disregards

Allah’s persistent conclusory allegations and allegations contradicted by the medical report*—are

not sufficient to support the argument that Hoffman-Rosenfeld’s actions were objectively

unreasonable. As this Court stated in its original M&O, “[i]n the context of child abuse or neglect

proceedings, the Second Circuit has applied a deferential standard, emphasizing that ‘courts must

apply the “reasonable basis” test to permit investigators considerable discretion in the abuse

context.” Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir. 1999).” While Allah seems to argue

that Hoffman-Rosenfeld’s notations in the medical report regarding the limited nature of her

information at the time of making the report evidence an unreasonable failure to acquire further

information, (TAC § 102-03), that allegation in fact supports the reasonability of Hoffman-

Rosenfeld’s actions. By noting, at the time of her assessment, that “[d]etails of timeline are

unavailable,” (D.E. 89-1 at 1), and “mother unavailable,” (id. at 2), Hoffman-Rosenfeld provided

4 Allah alleged that Hoffman-Rosenfeld “made no efforts to look at a potential diagnosis other than Abusive Head

Trauma (AHT) formerly known as Shaken Baby Syndrome (SBS).” (TAC J 105.) However, the Court need not credit

that allegation because it is contradicted by the medical report integral to the complaint. Setting aside whether

Hoffman-Rosenfeld’s description of the CT scan that had been done at St. John’s actually constitutes a diagnosis of

Abusive Head Trauma or Shaken Baby Syndrome, the report reflects diagnostic interest in items far afield from that

diagnosis; it discusses finding “skin bruises/contusion of head and pelvic/suprapubic region that have areas of pattern

which are similar implying use of an implement.” (D.E. # 89-1 at 3.) These notes make clear that Hoffman-Rosenfeld

did evaluate for symptoms other than those symptoms that would lead to a diagnosis of SBS, as the Court is aware of

no argument that patterned pelvic/suprapubic bruising is one of, as Allah puts it, the “markers/factors or

‘constellations’ of what the prevailing medical science has now and otherwise debunked as indicative of Abusive

Head Trauma (AHT) or as it was previously known as the debunked Shaken Baby Syndrome (SBS),” (TAC ¥ 104).

>In his Third Amended Complaint, Allah provides quotes in J 102 that appear to be slightly misquoting the medical

report (although the Court cannot be entirely sure, as no source citation is provided for the quotations in that

paragraph). The Court views these as quotations from the medical report that have been incorrectly transcribed and,

therefore, is using the accurate language from the medical report, (D.E. # 89-1), to substitute for the misquotations in

102.

12

important context for any individual reading her assessment in the future who may have more

complete or contradictory information available. Commenting that at the time the “mother [was]

unavailable” in fact caveats Hoffman-Rosenfeld’s comment that “there was no explanation for the

injuries,” (id. at 1-2), and is a reasonable way to provide context. The alleged harm to Plaintiff

stemmed from Hoffman-Rosenfeld allegedly diagnosing the injury as “acute,” (TAC 108),

purportedly narrowing the time frame for the cause of the child’s injuries down to a time period

during which the Plaintiff was caring for the child. Hoffman-Rosenfeld’s diagnosis of the child’s

injuries as “acute”——an allegation, the Court should note, which is not supported by any language

the Court can find in the medical report—seems within reason on the facts as Plaintiff has alleged

them: that the child had fallen “recently,” (TAC { 83), causing “swelling on the side of [the child’s]

head” that his mother observed “[a]t or about 8:30 P.M.,” (TAC § 82), i.e., 13 hours before

Hoffman-Rosenfeld’s examination. (See also TAC { 85 (“[O]n November 10, 2014 [the mother]

observed the bump/swelling on [the child’s] head.”).) And regardless of whether Hoffman-

Rosenfeld’s alleged diagnosis was ultimately the right one, she did nothing to stray outside the

bounds of the wide discretion that the Second Circuit affords investigators in the child abuse

context.

I. Motion to Stay

On December 26, 2018, the Appellate Division of the Supreme Court of the State of New

York reversed the decision of the Queens County Family Court with respect to its finding that

Allah did not “derivatively abuse[] the child A.A.” (D.E. #120.) Allah subsequently moved to

stay the proceedings in this case, stating that the recent decision by the Appellate Division “does

affect many outstanding issues in this federal case,’ and that it would be prudent to stay

proceedings until the “underlying family court decision and its appeals conclude.” (D.E. # 121.)

13

The Northwell Defendants opposed a stay. The other defendants remaining in this action—

represented by Corporation Counsel for the City of New York—do not oppose a stay. Because

the motion for reconsideration is denied and the Northwell Defendants are dismissed from this

action, the Court grants the stay of proceedings on consent of all remaining parties.

CONCLUSION

For the reasons stated above, Allah’s motion for reconsideration is denied. The Northwell

Defendants remain dismissed from this action. Allah’s motion for a stay of proceedings is granted

on consent of the remaining parties. The Court directs Allah to provide the Court with an update

every 60 days until the underlying Family Court matter is ultimately resolved.

SO ORDERED.

Dated: December SZ. 2019

Brooklyn, New York s/Carol Bagley Amon

Carol Bagley □□□ /

United States District Judge

14