# Duncan v. Sullivan County

> District Court, S.D. New York · March 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10321198

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
JENNIFER DUNCAN and KAREN :
KENNING, in her capacity as Trustee of the :
JENNIFER DUNCAN SUPPLEMENTAL :
NEEDS TRUST, :
Plaintiffs, :
:
v. :
: OPINION AND ORDER
SULLIVAN COUNTY; INDEPENDENT :
LIVING, INC.; JOSEPH TODORA; WILLIAM : 18 CV 9269 (VB)
MOON; VICTORIA SAWALL; COLLEEN :
CUNNINGHAM; CONSTANTINA HART; :
RACHEL INNELLA; MICHAEL ALLEN; :
MARC ISAACS; SAMUEL L. SPITZBERG; :
HOWARD ZUCKER; JOHN DOE 1–10; and :
JANE DOE 1–10, :
Defendants. :
-------------------------------------------------------------x

Briccetti, J.:

Plaintiffs Jennifer Duncan and Karen Kenning, in her capacity as Trustee of the Jennifer
Duncan Supplemental Needs Trust, bring this action against: (i) the “Sullivan County
Defendants,” comprising Sullivan County, Joseph Todora, William Moon, Colleen Cunningham,
Constantina Hart, Victoria Sawall, and Rachel Innella; (ii) current and former officials of New
York State’s Office of Temporary and Disability Assistance (“OTDA”)—Michael Allen, Marc
Isaacs, Samuel D. Roberts, Michael P. Hein, and Samuel L. Spitzberg (the “OTDA
Defendants”); (iii) New York State Department of Health Commissioner Howard Zucker (with
the OTDA Defendants, the “State Defendants”); and (iv) Independent Living, Inc., for claims
relating to the termination of Duncan’s federally funded medical assistance benefits
(“Medicaid”).
Now pending are four motions to dismiss plaintiffs’ first amended complaint (“FAC”)
pursuant to Rule 12(b)(6), filed by, respectively: (i) the State Defendants (Doc. #101); (ii)
Sullivan County, Todora, Moon, and Cunningham (Doc. #108); (iii) Independent Living (Doc.
#112); and (iv) Hart, Innella, and Sawall (Doc. #118).
For the following reasons, the State Defendants’ motion (Doc. #101) is GRANTED IN
PART and DENIED IN PART; Sullivan County, Todora, Moon, and Cunningham’s motion

(Doc. #108) is GRANTED IN PART and DENIED IN PART; Independent Living’s motion
(Doc. #112) is GRANTED; and Hart, Innella, and Sawall’s motion (Doc. #118) is GRANTED
IN PART and DENIED IN PART.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
For the purpose of ruling on the motions to dismiss, the Court accepts as true all well-
pleaded allegations in the FAC and draws all reasonable inferences in plaintiffs’ favor, as
summarized below.
I. The Medicaid Program
Medicaid, a joint federal-state program, provides federal funding for state programs that

provide medical assistance, rehabilitation, and other services to individuals with limited income
and resources. States choosing to participate in Medicaid must administer the program through a
single state agency.
New York State’s Department of Health (“DOH”) is the state agency responsible for the
administration of Medicaid in New York. DOH delegates day-to-day operations of certain
aspects of Medicaid to local departments of social services, including Sullivan County’s
Department of Family Services (“DFS”).
DOH has delegated to OTDA supervision of the State’s social service programs and
review of local social services departments’ determinations regarding individuals’ social services
program benefits. Thus, an individual who wishes to challenge a local social services
department’s determination regarding his or her Medicaid coverage may do so by requesting a
“fair hearing” before an OTDA Administrative Law Judge (“ALJ”).
II. Duncan’s Consumer-Directed Personal Assistance Program Services

About twenty years ago, Duncan was allegedly diagnosed with several solvent- and
toxicant-induced medical conditions, rendering her disabled and in need of significant at-home
care and assistance. According to Duncan, these conditions require her to avoid exposure to
certain chemicals found in many household products, including common cleaning fluids,
perfumes, colognes, and deodorants. Accordingly, Duncan and visitors to her home must wear
clothing laundered with non- or less-toxic solutions, such as borax.
From April 2009 to October 10, 2014, Duncan, a resident of Sullivan County, received
consumer-directed personal assistance services through the Consumer Directed Personal
Assistance Program (“CDPAP”), as administered by DFS. CDPAP is available through a
Medicaid Managed Long Term Care Health Plan, and allows states to provide eligible

beneficiaries with an optional choice of self-directed personal assistance services to
accommodate their medical needs. Specifically, CDPAP allows individuals with an approved
self-directed services plan and budget to purchase personal care assistance and related services,
thus permitting eligible individuals to independently hire, supervise, and manage personal care
assistants (“PCAs”).
According to Duncan, she utilized CDPAP because it was the only program available to
her through which she could control the dress, and use of personal products, of any PCAs
providing assistance. This was important to Duncan because of her medical conditions and
sensitivity to various solvents and toxicants.
III. Fiscal Intermediary Independent Living
By law, local districts, like Sullivan County, must pay CDPAP PCAs through third-party
fiscal intermediaries, such as Independent Living. Independent Living contracts with Sullivan
County to provide insurance and wage and benefit processing to PCAs employed by CDPAP-

eligible beneficiaries. However, third-party fiscal intermediaries, like Independent Living, have
no authority to manage, hire, or fire CDPAP PCAs.
In April 2009, Duncan entered into an agreement with Independent Living under which
Independent Living agreed to act as the third-party fiscal intermediary for Duncan’s PCAs. In
other words, Independent Living agreed to be the fiscal intermediary between Duncan, who hired
her PCAs, and DFS, which administered CDPAP. As a result, Independent Living agreed to
provide insurance, and wage and benefit processing, to Duncan’s PCAs.
IV. Termination of Duncan’s CDPAP Services
Federal regulations implementing the Medicaid program require DOH to redetermine the
eligibility of Medicaid beneficiaries at least every twelve months. Thus, around June 2014,

Duncan requested assistance from DFS to obtain and complete Medicaid recertification forms.
However, Sawall, Innella, or one or more of the other Sullivan County Defendants allegedly
refused to provide Duncan recertification assistance in retaliation for complaints Duncan made
previously about other social services, or lack thereof. On August 1, 2014, Duncan’s Medicaid
coverage and benefits were terminated.
According to Duncan, in September 2014, one or more of the Sullivan County
Defendants notified Independent Living that Duncan’s Medicaid coverage had terminated as of
August 1, 2014. Independent Living then notified Duncan that, effective October 10, 2014, it
would discontinue providing fiscal intermediary services to Duncan’s PCAs. Independent
Living also notified Duncan’s PCAs that it would no longer provide fiscal intermediary services
for any continued work for Duncan after October 10, 2014.
Upon learning that her Medicaid coverage had been terminated, Duncan requested a fair
hearing before OTDA as to her Medicaid recertification and CDPAP eligibility.

According to Duncan, when a Medicaid recipient requests a fair hearing, she is entitled to
receive her benefits unchanged until a decision is made following the hearing. Indeed, Duncan
alleges that around October 8, 2014, OTDA ordered Duncan’s CDPAP aid to continue. OTDA
allegedly further ordered Duncan’s Medicaid reinstated, retroactive to August 1, 2014, until a
fair hearing decision was rendered. Duncan notified Independent Living of OTDA’s orders and
requested it rescind the notices it sent to her PCAs to inform them that they could continue to
work for Duncan for pay. Duncan alleges Independent Living did not rescind the notices.
According to Duncan, a Medicaid recipient who requests a fair hearing may also request
a local agency conference to resolve the matter short of a fair hearing determination. Thus, at
some unspecified time, Duncan requested an agency conference with DFS, as provided for by

regulation, to contest the discontinuance of her Medicaid coverage and CDPAP services.
Duncan alleges Todora, Moon, and Hart refused Duncan’s request for an agency conference.
According to Duncan, the OTDA ALJ who presided over a fair hearing session directed
DFS to restore Duncan’s CDPAP pending a final decision, and to provide Duncan with access to
her complete Medicaid case file. Notwithstanding these directives, Duncan alleges the Sullivan
County Defendants, and specifically Hart, refused to provide her case file.
Duncan further alleges Hart and other Sullivan County Defendants then conspired to
initiate an involuntary guardianship proceeding against Duncan, seeking to deprive her of any
opportunity “to enforce[e] her rights against them.” (Doc. #100 (“FAC”) ¶ 89). The
guardianship proceeding was dismissed in March 2017, after a judge directed DFS to provide
Duncan “the help she needed.” (Id. ¶ 91). However, DFS agreed to pay for fifteen weekly hours
of CDPAP services only, and, at some unspecified later date, discontinued same.
After DFS discontinued “the minimal 15 hour program,” Duncan sought another fair

hearing, and OTDA again ordered aid to continue. (FAC ¶ 92). According to Duncan, DFS
refused to comply with OTDA’s directive. Duncan further alleges that OTDA Defendant Allen
stated OTDA Defendants Isaacs and Roberts instructed other OTDA officials “to refrain from
taking effective action to enforce the Aid Continuing directive.” (Id. ¶ 95).
According to Duncan, OTDA had reissued aid-continuing directives in 2015, 2016, and
2017, but DFS and Independent Living have not complied with these directives. (FAC ¶ 78).
Duncan further alleges that on June 14, 2017, OTDA Defendant Spitzberg participated in
a conference call concerning Duncan’s case, but took no action to enforce OTDA’s aid-
continuing directive despite having knowledge of same.
According to Duncan, OTDA Defendant Isaacs scheduled multiple telephonic hearings

regarding Duncan’s request for a fair hearing, but proceeded with the hearings despite knowing
Duncan could not participate at the scheduled times.
As an additional matter, Duncan further alleges that, at some unspecified time while she
was receiving CDPAP PCA services, Sullivan County Defendant Innella refused to
accommodate Duncan’s disabilities because she refused to prepare her clothing in a manner
consistent with Duncan’s directives. According to Duncan, Innella requested payment for time
spent laundering her clothing in accordance with Duncan’s directives, and Sullivan County
Defendant Moon, Innella’s superior, told Innella she would not be paid for such time.
V. Supplemental Needs Trust
In 2009, the Jennifer Duncan Supplemental Needs Trust (“SNT”) was established by
order of the Supreme Court, Kings County. The SNT was funded with workers compensation
payments due, and to become due, to Duncan, and continued to be funded by contributions from

Duncan’s “Medicaid spenddown requirements.” Duncan alleges her SNT was not intended to
pay for services covered by Medicaid or other social services programs, but rather for housing
and other needs. (FAC ¶ 8).
After Duncan’s Medicaid coverage and CDPAP benefits were terminated, Kenning, the
Trustee of the Duncan’s SNT, utilized SNT funds to pay qualified aides for home health
services. According to Duncan, the SNT is now exhausted, and she is without funds to continue
to pay for requisite home health services.
DISCUSSION
I. Standard of Review
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).1 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.

1 Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
To survive a Rule 12(b)(6) motion, the complaint’s allegations must meet a standard of
“plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
II. Karen Kenning
Defendants argue any claims asserted by Karen Kenning, as Trustee of the Jennifer
Duncan Supplemental Needs Trust, should be dismissed because Kenning has no plausible cause
of action.
The Court agrees.
“In order to seek redress through § 1983, . . . a plaintiff must assert the violation of a
federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340

(1997). Because Section 1983 does not create any independent federal right, courts consider
three factors to determine whether a particular statutory provision gives rise to actionable Section
1983 claim. Id.
“First, Congress must have intended that the provision in question benefit the plaintiff.”
Blessing v. Freestone, 520 U.S. at 340. “Second, the plaintiff must demonstrate that the right
assertedly protected by the statute is not so vague and amorphous that its enforcement would
strain judicial competence.” Id. at 340–41. “Third, the statute must unambiguously impose a
binding obligation on the States.” Id. at 341.
Here, although the Medicaid statutes afford privately enforceable fair hearing rights to
beneficiaries or enrollees, see 42 U.S.C. § 1396(a)(3) and Shaknes v. Eggleston, 740 F. Supp. 2d
602, 616 (S.D.N.Y. 2010), aff’d in part, vacated in part sub nom, Shaknes v. Berlin, 689 F.3d
244 (2d Cir. 2012), the statutes do not confer any rights upon Kenning, as Trustee of Duncan’s

SNT. See 42 U.S.C. § 1396p(d)(4)(A). Plaintiffs acknowledge as much, arguing Kenning “is
only a nominal party seeking to preserve and enforce rights of the trust beneficiary who most
definitely has standing.” (Doc. #135 (“Pls. Opp.”) at 9).
Accordingly, Kenning’s capacity as Trustee of Duncan’s SNT does not bestow upon
Kenning a plausible cause of action against any defendant. Simply, the statutory and regulatory
provisions referenced in the FAC do not afford a Trustee of a beneficiary’s SNT privately
enforceable rights. To the extent the FAC contains causes of action asserted by Kenning, such
claims must be dismissed.
III. Capacity to Maintain Suit
Defendants argue Duncan lacks capacity to maintain the instant action and, as a result,

the case should either be dismissed without prejudice or stayed pending a competency
determination.
The Court disagrees.
A litigant’s capacity to sue or be sued in her individual capacity is determined “by the
law of the individual’s domicile.” Fed. R. Civ. P. 17(b)(1). Under New York law, “[a] person
shall appear by [her] guardian ad litem . . . if [s]he is an adult incapable of adequately
prosecuting or defending [her] rights.” N.Y. C.P.L.R. § 1201.
At this time, there is no reasonable indication that Duncan lacks capacity to maintain this
action. Although the FAC states Duncan “has been, and is, unable to participate fully or even
reasonably or adequately in this or other litigation or administrative proceedings,” (FAC ¶ 135),
this allegation is belied by Duncan’s commencement of the instant action and participation in
this litigation. Moreover, it does not appear that Duncan’s prior involuntary guardianship
proceedings resulted in the appointment of a guardian to manage her affairs.

Accordingly, the Court declines to interpret Duncan’s above-quoted allegation as a
judicial admission that she lacks capacity to prosecute this case. If circumstances change,
defendants can renew their application at that time.
IV. Statute of Limitations
Defendants contend all of Duncan’s claims are untimely because the statute of limitations
for Section 1983 claims is three years. Specifically, they argue Duncan’s claims, if any, accrued
no later than October 2014, when Duncan became aware that her CDPAP services were
discontinued and at which time she did not receive aid-continuing benefits. This action was
commenced on October 10, 2018, more than three years later.
The Court agrees with respect to Duncan’s claims respecting the 2014 termination of her

Medicaid and CDPAP services and also her involuntary guardianship proceeding, but disagrees
with respect to Duncan’s other claims.
“Although courts look to state law for the length of the limitations period, the time at
which a § 1983 claim accrues is a question of federal law, conforming in general to common-law
tort principles.” McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019). “That time is
presumptively when the plaintiff has a complete and present cause of action.” Id. “In the
context of Medicaid procedures, the date of accrual is the time when a final determination is
issued, or if no determination is issued, the time at which the litigant could have assumed that he
or she had received a final determination.” Trs. of Masonic Hall & Asylum Fund v. Leavitt,
2006 WL 1686405, at *12 (N.D.N.Y. June 7, 2006) (citing Hollander v. Brezenoff, 787 F.2d
834, 839 (2d Cir. 1986)).
“The continuing violation doctrine, where applicable, provides an exception to the
normal knew-or-should-have-known accrual date.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d

Cir. 2015). “[W]here the continuing violation doctrine applies, the limitations period begins to
run when the defendant has ‘engaged in enough activity to make out an actionable . . . claim.’”
Id. (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). “It applies to
claims composed of a series of separate acts that collectively constitute one unlawful [] practice.”
Id. (alteration in original). It thus “applies not to discrete unlawful acts, even where those
discrete acts are part of a ‘serial violation[],’ but to claims that by their nature accrue only after
the plaintiff has been subjected to some threshold amount of mistreatment.” Id. (quoting Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. at 114–15) (alteration in original).
In addition, because “the defendants bear the burden of establishing the expiration of the
statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground

may be granted only if it is clear on the face of the complaint that the statute of limitations has
run.” Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F. Supp. 3d 191, 209 (S.D.N.Y.
2014).
Here, Duncan’s contention that the continuing violation doctrine applies is unpersuasive.
First, the allegations in the FAC respect discrete acts, rather than “claims that by their nature
accrue only after the plaintiff has been subjected to some threshold amount of mistreatment.”
See Gonzalez v. Hasty, 802 F.3d at 220. Indeed, the allegedly unlawful termination of Duncan’s
Medicaid benefits, and defendants’ repeated and allegedly unlawful failure to either comply with
or enforce OTDA’s annual aid-continuing directives, are separate and discrete acts that, if true,
each give rise to a Section 1983 claim. So too do defendants’ alleged failures to provide Duncan
an adequate fair hearing or agency conference.
Accordingly, Duncan’s claims concerning allegations of conduct that pre-dates October
10, 2015—three years prior to the commencement of this case—must be dismissed. These

include Duncan’s claims (i) against the Sullivan County Defendants, for failure to assist Duncan
with her Medicaid re-certification in June 2014; (ii) against any of the defendants, for
termination of Duncan’s Medicaid and CDPAP services in October 2014; (iii) defendants’
alleged failures to comply with OTDA’s 2014 aid-to-continue directive; and (iv) claims relating
to the commencement of involuntary guardianship proceedings. Accordingly, Duncan’s third
cause of action against Sullivan County, Innella, Moon, and Independent Living, for failure to
provide adequate notice of her Medicaid benefits termination, is subject to dismissal. And
subject to partial dismissal are Duncan’s first, second, fifth, and sixth causes of action, inasmuch
as they hinge on any time-barred conduct.
However, Duncan alleges that her requests for an OTDA fair hearing and a DFS agency

conference have been ignored. It is not entirely clear when Duncan could have assumed that
such requests were denied by OTDA or DFS, and thus it is not apparent on the face of the FAC
when these claims accrued. Accordingly, at this stage of the proceedings, Duncan plausibly
alleges claims respecting defendants’ refusal to afford Duncan a fair hearing and agency
conference, which are not time-barred.
Duncan also alleges that in 2016, and 2017, OTDA reissued directives for her CDPAP
services to continue pending a final determination of her fair hearing request. According to
Duncan, defendants have not complied with, or enforced, these directives. Such claims respect
discrete conduct by defendants within the applicable three-year statute of limitations.
Accordingly, Duncan’s claims respecting these allegations are timely.
V. Pending State Court Proceeding
Defendants argue the instant case should be dismissed or stayed, because on January 16,

2016, Duncan commenced a state-court lawsuit against Sullivan County and DFS, alleging
similar and overlapping facts and claims as those alleged herein.
The Court disagrees.
In an exercise of its discretion, a federal court may stay proceedings “in the action before
it pending a decision by the state court, with a view to avoiding wasteful duplication of judicial
resources and having the benefit of the state court’s views.” Giulini v. Blessing, 654 F.2d 189,
193 (2d Cir. 1981). In this district, seven factors control a court’s determination whether to order
a stay or dismiss an action on the parallel-state-proceeding theory:
(1) identity of parties and issues in both actions; (2) considerations of comity;
(3) promotion of judicial efficiency; (4) adequacy and extent of relief available in
the alternative forum; (5) likelihood of prompt disposition in the alternative forum;
(6) convenience of parties, counsel, and witnesses; and (7) possibility of prejudice
to a party as a result of the stay.

Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072, 1077 (S.D.N.Y. 1982).
On balance, the Court is not persuaded dismissal or a stay is warranted. According to
Duncan, she has not pursued her state-court case and, therefore, promotion of judicial efficiency
and the likelihood of prompt disposition in the alternative forum weigh against dismissal or a
stay. In addition, the majority of the named defendants in the instant case do not appear to be
party defendants in Duncan’s state-court filing. Furthermore, Duncan may be prejudiced by a
stay of proceedings given her alleged medical condition and alleged need for reinstatement of
Medicaid benefits. Finally, although some of the instant claims respect conduct preceding
Duncan’s January 2016 state-court filing, other claims respect conduct that occurred after
January 2016, including defendants’ alleged failure to comply with OTDA’s 2017 directive for
aid to continue.
Accordingly, the Court declines to dismiss or stay the instant case based on Duncan’s

prior state-court filing.
VI. Exhaustion and Primary Jurisdiction
Sullivan County, Todora, Moon, and Cunningham argue the Court should dismiss the
FAC based on Duncan’s failure to exhaust administrative remedies.
The Court disagrees.
Generally, a party “who objects to the act of an administrative agency must exhaust
available administrative remedies before being permitted to litigate in a court of law.” Coleman
v. Daines, 79 A.D.3d 554 (1st Dep’t 2010). However, this rule is not inflexible. For example, it
need not be followed “when an agency’s action is challenged as either unconstitutional or wholly
beyond its grant of power, or when resort to an administrative remedy would be futile or when its

pursuit when cause irreparable injury.” Id. Moreover, exhaustion is not required “where only an
issue of law is involved . . . or where the issue involved is purely the construction of the relevant
statutory and regulatory framework.” Id.
Here, Duncan alleges she was entitled, as a matter of law, to aid-continuing benefits upon
her request for a fair hearing following the termination of her Medicaid benefits and CDPAP
services. She further alleges defendants have ignored OTDA’s directives, pursuant to statutory
requirements, for her aid to continue pending resolution of her fair hearing request or agency
conference. Yet, in defendants’ view, Duncan must first (i) wait an indeterminate amount of
time for a state agency to render a final decision regarding her fair hearing request, and then (ii)
seek redress through an Article 78 proceeding, before bringing constitutional claims in this
Court.
Defendants’ perception distorts the above exhaustion principle. Duncan’s claims respect
an issue of law—principally defendants’ alleged failure to continue her Medicaid and CDPAP

services pending resolution of her fair hearing and agency conference requests. Duncan alleges
such conduct is unconstitutional, and that resort to an administrative remedy would be futile at
this juncture or cause irreparable injury. Accordingly, at this stage, the Court declines to dismiss
Duncan’s claims on exhaustion grounds.
Defendants next argue the FAC should be dismissed pursuant to the doctrine of primary
jurisdiction.
Again, the Court disagrees.
“The doctrine of primary jurisdiction allows a federal court to refer a matter extending
beyond the conventional experiences of judges or falling within the realm of administrative
discretion to an administrative agency with more specialized experience, expertise, and insight.”

U.S. ex rel. Krol v. Arch Ins. Co., 46 F. Supp. 3d 347, 354 n.4 (S.D.N.Y. 2014). “The doctrine’s
central aim is to allocate initial decisionmaking responsibility between courts and agencies.”
Ellis v. Tribune Television Co., 443 F.3d 71, 81 (2d Cir. 2006). “Recourse to the doctrine of
primary jurisdiction is thus appropriate ‘whenever enforcement of the claim requires the
resolution of issues which, under a regulatory scheme, have been placed within the special
competence of an administrative body.’” Id. (citing United States v. W. Pac. R.R., 352 U.S. 59,
64 (1956)). However, the doctrine is not usually applied “when the issue at stake is legal in
nature and lies within the traditional realm of judicial competence.” Goya Foods, Inc. v.
Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 1988).
Defendants offer no persuasive reason to dismiss this action pursuant to the primary
jurisdiction doctrine. This is because Duncan’s claims do not require resolution of issues within
the special competence of an administrative body. According to Duncan, her fair hearing and
agency conference requests have been pending for some time, the stalled resolution of which has

violated her constitutional right to due process. Moreover, in the Court’s view, the issue of
whether defendants’ alleged failures to provide aid-continuing services to Duncan pending
resolution of her challenge to Medicaid termination does not extend beyond the conventional
experiences of this Court, nor does it fall within the realm of specialized administrative
discretion.
Accordingly, the Court declines to dismiss this case pursuant to the doctrine of primary
jurisdiction.
VII. Due Process
Defendants argue Duncan fails to plausibly allege a procedural due process claim.
The Court disagrees.

In order to state a valid claim for deprivation of procedural due process under Section
1983 a plaintiff must demonstrate that she “possessed a protected liberty or property interest, and
that [s]he was deprived of that interest without due process.’” McMenemy v. City of Rochester,
241 F.3d 279, 285–86 (2d Cir. 2001). “An essential principle of due process is that a deprivation
of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the
nature of the case.’” Richardson v. Kelaher, 1998 WL 812042, at *4 (S.D.N.Y. Nov. 19, 1998)
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).
It is settled that Medicaid benefits “are a protectable property interest under the
Fourteenth Amendment.” Mayer v. Wing, 922 F. Supp. 902, 910 (S.D.N.Y. 1996) (citing
Goldberg v. Kelly, 397 U.S. 254, 264 (1970)). Federal regulations require that the state’s
hearing system ‘meet the due process standards set forth in Goldberg v. Kelly.” See 42 C.F.R.
§ 431.205(d). In Goldberg, the Supreme Court determined that due process requires “an
adequate hearing” before benefits are terminated. Goldberg v. Kelly, 397 U.S. at 261. This

includes “the right to a decision.” Shaknes v. Berlin, 689 F.3d at 256.
“Under federal law, when a person’s claim for Medicaid assistance is denied or not acted
upon with reasonable promptness, the state must ‘provide . . . an opportunity for a fair hearing
before the State agency.” Fishman v. Daines, 743 F. Supp. 2d 127, 133 (E.D.N.Y. 2010)
(quoting 42 U.S.C. § 1396(a)(3)). Indeed, “[a] person whose Medicaid benefits are terminated is
entitled to constitutional due process, such as notice and a hearing, if timely requested.” Graus v.
Kaladjian, 2 F. Supp. 2d 540, 544 (S.D.N.Y. 1998).
Here, defendants argue Duncan cannot state a plausible due process claim because she
can obtain due process by continuing to pursue a fair hearing administrative remedy and,
thereafter, an Article 78 proceeding, if necessary. Again, defendants’ arguments miss the mark.

The problem with defendants’ contention is that, according to Duncan, she has requested fair
hearings and an agency conference, to no avail. And “where a plaintiff bring[s] claims based on
the inadequacy of current state procedures, ‘the availability of post-deprivation procedures will
not, ipso facto, satisfy due process.’” Fishman v. Daines, 743 F. Supp. 2d at 146 (quoting
Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.
1996)). Although Article 78 would provide Duncan a post-deprivation remedy, the Court cannot
conclude at this stage that such remedy would be constitutionally adequate, since final
determinations respecting Duncan’s fair hearing and agency conference requests have not yet
issued.
Accordingly, at the motion to dismiss stage, Duncan has sufficiently alleged inadequacies
respecting the procedures defendants suggest are available to her, as well as violations of due
process, and the Court thus declines to dismiss the procedural due process claim.
VIII. Personal Involvement

The Sullivan County Defendants and State Defendants argue the FAC must be dismissed
because Duncan fails to allege their personal involvement in any conduct violative of Duncan’s
constitutional rights.
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under Section 1983.” Wright v. Smith, 21 F.3d 496, 501
(2d. Cir. 1994). “The Second Circuit has defined ‘personal involvement’ to mean direct
participation, such as ‘personal participation by one who has knowledge of the facts that
rendered the conduct illegal,’ or indirect participation, such as ‘ordering or helping others to do
the unlawful acts.’” Leneau v. Ponte, 2018 WL 566456, at *14 (S.D.N.Y. Jan. 25, 2018)
(quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)).

Supervisor liability under § 1983 can be shown in one or more of the following
ways: (1) actual direct participation in the constitutional violation, (2) failure to
remedy a wrong after being informed through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct amounting to a constitutional violation,
or allowing such a policy or custom to continue, (4) grossly negligent supervision
of subordinates who committed a violation, or (5) failure to act on information
indicating that unconstitutional acts were occurring.

Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (citing Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995)).2

2 Since Ashcroft v. Iqbal, district courts within the Second Circuit have been divided as to
whether claims alleging personal involvement under the second, fourth, and fifth of these factors
remain viable. See Marom v. City of New York, 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7,
2016) (collecting cases), on reconsideration in part, 2016 WL 5900217 (S.D.N.Y. July 29, 2016).
The Second Circuit has yet to resolve this dispute. Id.
“However, complaints that rely on group pleading and fail to differentiate as to which
defendant was involved in the alleged unlawful conduct are insufficient to state a claim.” Id.
(citing Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary order)); see
also Fleming v. City of New York, 2019 WL 4392522, at *15 (S.D.N.Y. Aug. 27, 2019) (noting

allegations concerning a Section 1983 claim “are not sufficient to allege personal involvement
[when] they fail to differentiate as to which defendant was involved in the alleged unlawful
conduct.”).
A. Sullivan County Defendants
1. Sullivan County Defendants Generally
To the extent Duncan attributes allegedly unlawful conduct to the “Sullivan County
Defendants” generally, such allegations fail to allege the personal involvement of any named
defendant and therefore are insufficient to state a claim. See Atuahene v. City of Hartford, 10 F.
App’x at 34.
2. Sawall and Innella

With respect to Sawall personally, Duncan alleges that in 2014, Sawall “determined not
to provide requested assistance . . . in re-certifying [Duncan’s] Medicaid coverage,” knowing the
failure to do so would result in Duncan “losing, temporarily or permanently, the benefits of the
federal program.” (FAC ¶ 68). And with respect to Innella personally, Duncan alleges that: (i)
in 2014, Innella “determined not to provide requested assistance . . . in re-certifying [Duncan’s]
Medicaid coverage,” knowing the failure to do so would result in Duncan “losing, temporarily or
permanently, the benefits of the federal program” (FAC ¶ 68); (ii) at some time during Duncan’s
receipt of CDPAP services, Innella refused to accommodate Duncan’s medical needs by
preparing her clothing in conformity with Duncan’s specifications; (iii) in June 2015, Innella
helped initiate guardianship proceedings against Duncan; and (iv) Innella failed to provide
Duncan adequate notice of her Medicaid termination or reduction in care.
The above allegations respect conduct outside the applicable three-year statute of
limitations for Section 1983 claims. Accordingly, Duncan’s claims must be dismissed inasmuch

as they are asserted against Sawall or Innella.
3. Cunningham
The FAC contains no specific allegations concerning Cunningham. Accordingly, Duncan
fails to allege Cunningham’s personal involvement, and thus Duncan’s claims must be dismissed
inasmuch as they are asserted against this defendant.
4. Hart
With respect to Hart personally, Duncan alleges that: (i) Hart has failed to enforce
OTDA’s directive for aid to continue or afford Duncan an agency conference; (ii) Hart has
refused to provide Duncan her case file in connection with Duncan’s request for a fair hearing;
and (iii) in June 2015, Hart unlawfully initiated guardianship proceedings against Duncan.

Duncan pleads sufficiently Hart’s personal involvement in her alleged refusal to enforce
OTDA’s aid-continuing directives and accommodate Duncan’s request for an agency
conference, as well as Hart’s refusal to provide Duncan her case file. Moreover, these
allegations concern conduct beyond merely providing counsel to a municipal entity.
Accordingly, Duncan’s claims respecting these allegations shall proceed.
However, Duncan’s claims respecting the initiation of guardianship proceedings are time-
barred as outside the applicable statute of limitations. Accordingly, Duncan’s claims must be
dismissed inasmuch as they concern same.
5. Moon
With respect to Moon personally, Duncan alleges that: (i) he has failed to afford Duncan
an agency conference following termination of her Medicaid benefits; and (ii) when Duncan was
receiving CDPAP services, Moon refused to authorize payment to Innella for time spent to

launder clothes to accommodate Duncan’s care directives.
Duncan pleads sufficiently Moon’s personal involvement in his alleged refusal to
accommodate Duncan’s request for an agency conference. Accordingly, Duncan’s claims
respecting this allegation shall proceed.
However, Moon’s alleged refusal to authorize certain payments while Duncan was
receiving CDPAP services concerns conduct outside the applicable statute of limitations.
Therefore, Duncan’s claims must be dismissed inasmuch as they respect this allegation.
6. Todora
With respect to Todora personally, Duncan alleges he: (i) refused to afford Duncan an
agency conference following termination of her Medicaid benefits; (ii) failed to provide Duncan

adequate notice of her Medicaid termination or reduction in care; and (iii) failed to accommodate
Duncan’s medical needs by denying Duncan certain assistance while she was receiving CDPAP
services.
Duncan pleads sufficiently Todora’s personal involvement in his alleged refusal to
accommodate Duncan’s request for an agency conference. Accordingly, Duncan’s claims
respecting this allegation shall proceed.
However, Todora’s alleged failures to provide Duncan notice of her Medicaid
termination and accommodations while Duncan was receiving CDPAP service concern conduct
outside the applicable limitations period. Accordingly, Duncan’s claims must be dismissed
inasmuch as they respect these allegations.
B. State Defendants
1. State Defendants Generally

To the extent Duncan attributes allegedly unlawful conduct to the “State Defendants”
generally, such allegations fail to allege the personal involvement of any named defendant and
therefore are insufficient to state a claim. See Atuahene v. City of Hartford, 10 F. App’x at 34.
2. Hein and Zucker
The FAC contains no specific allegations concerning Hein, the acting Commissioner of
OTDA, or Zucker, the Commissioner of DOH, save for the fact that they have supervisory
responsibilities within their respective agencies. Indeed, Duncan does not plausibly allege either
of these defendants personally failed to enforce OTDA’s aid-continuing directives or fair hearing
obligations. Accordingly, Duncan’s claims against Hein and Zucker must be dismissed.
3. Roberts and Isaacs

With respect to Roberts and Isaacs personally, Duncan alleges they “instructed other
individuals at OTDA to refrain from taking effective action” to enforce OTDA’s aid-continuing
directives. (FAC ¶ 95). Taken as true, this allegation establishes these defendants’ personal
involvement in failing to enforce OTDA’s aid-continuing directives.
Accordingly, Duncan’s claims against Roberts and Isaacs shall proceed inasmuch as they
concern these defendants’ alleged failures to enforce OTDA’s aid-continuing directives.
Duncan also alleges Isaacs scheduled multiple fair hearings and allowed the scheduled
hearings to proceed without Duncan’s participation in same, even though Isaacs knew Duncan
could not participate in the hearings as scheduled. Accordingly, Duncan’s claims respecting her
requests for a fair hearing shall proceed against Isaacs.
4. Spitzberg and Allen
With respect to Spitzberg personally, Duncan alleges that on June 14, 2017, Spitzberg

participated in a conference call regarding Duncan’s case, and thereafter failed to enforce
OTDA’s aid-continuing directives. And with respect to Allen personally, Duncan alleges he
acknowledged Duncan’s entitlement to aid-continuing benefits, but failed to take measures to
enforce same.
Accordingly, Duncan’s claims against Spitzberg and Allen shall proceed inasmuch as
they respect these defendants’ alleged failures to enforce OTDA’s aid-continuing directives.
IX. Official Capacity
The State Defendants argue Duncan’s Section 1983 claims should be dismissed to the
extent they are asserted against the State Defendants in their official capacities.
The Court agrees.

“New York has not waived its immunity and consented to suit in federal court under . . .
[Section] 1983, and Congress’s enactment of . . . [Section] 1983 did not override the immunity
that the state and their agencies enjoy under the Eleventh Amendment.” Cajuste v. Lechworth
Dev. Disabilities Serv., 2005 WL 22863, at *3 (S.D.N.Y. Jan. 5, 2005) (citing Trotman v.
Palisades Interstate Park Comm’n, 557 F.2d 35, 38–40 (2d Cir. 1977)).
Thus, Duncan’s claims are dismissed inasmuch as they are asserted against the State
Defendants in their official capacities.
X. Independent Living
A. State Action
Independent Living argues it is not a state actor and therefore Duncan’s Section 1983
claims must be dismissed inasmuch as they are asserted against Independent Living.

The Court agrees.
To show that the actions of a private entity are attributable to the state, those actions must
meet one of three tests laid out by the Supreme Court: (1) the “compulsion” test, where an entity
acts pursuant to the coercive power of the state; (2) the “public function” test, where the state has
delegated a public function to the entity; or (3) the “joint action” or “close nexus” test, where the
state provides “significant encouragement” to the entity, the entity is a “willful participant in
joint activity with the [s]tate,” or the entity’s functions are “entwined” with state policies.
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257–58 (2d Cir. 2008).
In analyzing whether a private party acts under color of state law for purposes of Section
1983, the Court analyzes the specific conduct of which a plaintiff complains, rather than the

general characteristics of the party. See Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012).
The public function delegated to the private party must be one that is the exclusive or near
exclusive function of the state. Horvath v. Westport Library Ass’n, 362 F.3d 147, 151–52 (2d
Cir. 2004).
Here, Duncan’s Section 1983 claims against Independent Living fail for lack of state
action. As alleged in the FAC, Independent Living is a fiscal intermediary, which, unlike a
traditional, certified home health care agency, lacks authority to determine or assess a Medicaid
beneficiary’s medical necessities. See, e.g. Catanzano by Catanzano v. Dowling, 60 F.3d 113,
117–120 (2d Cir. 1995).
Indeed, as limited by New York Social Services Law, Independent Living merely
provided insurance, and wage and benefit processing, to PCAs employed by Duncan. See N.Y.
Soc. Serv. Law § 365-f(4-a)(a)(iii). Duncan does not plausibly allege, nor can she, that
Independent Living terminated Duncan’s Medicaid benefits or CDPAP services, or prevented the

reinstatement of such benefits or services. As noted herein, applicable law prevents fiscal
intermediaries from engaging in, inter alia, “managing the [consumer’s] plan of care . . . ;
training, supervising and scheduling each consumer directed personal assistant; [or] terminating
the consumer directed personal assistant’s employment.” Id. Accordingly, Independent Living’s
services, as a fiscal intermediary only, does not meet any of the aforementioned tests to satisfy
state action.
Moreover, according to the FAC, the services Independent Living afforded to Duncan did
not comprise conduct in derogation of Duncan’s constitutional rights. In other words,
Independent Living was never in a position, like that of a traditional, certified home health care
agency, to violate Duncan’s rights. It simply lacked authority to make the decisions that Duncan

alleges violated her constitutional right to due process.
For this reason, Duncan’s Section 1983 claims asserted against Independent Living must
be dismissed.
B. Breach of Contract
Independent Living further argues Duncan fails to plausibly allege a breach of contract
claim, to the extent one is pleaded.
The Court agrees.
To establish a breach of contract under New York law, a party must demonstrate: (i) the
existence of an agreement; (ii) performance by the moving party; (iii) breach of contract by the
opposing party; and (iv) damages. Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d
42, 52 (2d Cir. 2011).
Here, Duncan alleges Independent Living breached its contract with Duncan by
informing her PCAs that, following the termination of her Medicaid and CDPAP services, they

would no longer be paid for work performed for Duncan. Duncan further alleges Independent
Living breached the contract by refusing to perform its obligations as a fiscal intermediary
between Duncan and DFS. The contractual language on which Duncan relies states in pertinent
part:
Except as otherwise permitted by law, Jennifer Duncan will be notified of any
meeting or contact between [Independent Living] and any third party which relates
to her health or care, and [Independent Living] will obtain Jennifer Duncan’s
written permission for [Independent Living]’s participation in advance.

(FAC ¶ 66).
Fatally, Duncan does not plausibly allege Independent Living’s communications to her
PCAs were unlawful. As noted herein, Independent Living provided fiscal intermediary services
to PCAs hired by Duncan via her CDPAP services. When Independent Living was notified that
Duncan’s Medicaid coverage was terminated, it merely, allegedly, communicated same to
Duncan’s PCAs. Duncan does not allege Independent Living made any decision respecting the
hiring and firing of Duncan’s PCAs, or the management or eligibility of Duncan’s Medicaid
coverage and CDPAP services. For these reasons, Duncan’s breach of contract claim, to the
extent one is pleaded, must be dismissed.
XI. Monell Claim
Sullivan County argues that Duncan fails plausibly to state a claim under Monell v.
Department of Social Services, 436 U.S. 658 (1978), and, as a result, her claims against the
County should be dismissed.
The Court disagrees.
“It is axiomatic that municipalities cannot be held liable pursuant to § 1983 on a
respondeat superior theory.” Betts v. Shearman, 2013 WL 311124, at *15 (S.D.N.Y. Jan. 24,
2013) (citing Monell v. Dep’t of Soc. Servs, 436 U.S. at 690). Instead, “[t]o hold a

[municipality] liable under 1983 for the unconstitutional actions of its employees, a plaintiff is
required to plead and prove three elements: (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
To allege such a policy or custom, a plaintiff may assert one of the following:
(1) the existence of a formal policy officially endorsed by the municipality;
(2) actions taken or decisions made by municipal officials with final decision
making authority, which caused the alleged violation of plaintiff’s civil rights;
(3) a practice so persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the policymaking officials; or
(4) a failure by policymakers to properly train or supervise their subordinates,
amounting to “deliberate indifference” to the rights of those who come in contact
with the municipal employees.

Guzman v. United States, 2013 WL 5018553, at *3 (S.D.N.Y. Sept. 13, 2013) (quoting Saenz v.
Lucas, 2008 WL 2735867, at *5 (S.D.N.Y. July 9, 2008)).
“While Monell claims are not subject to a ‘heightened’ pleading standard beyond that
defined in Rule 8(a)(2), such claims nevertheless must meet the plausibility requirements of Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009).” Guzman v. United States, 2013 WL 5018553, at *4 (quoting Leatherman v. Tarrant
Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). In other words,
“boilerplate” allegations will not suffice. Id. at *3.
“[A]llegations [that a defendant] acted pursuant to a ‘policy,’ without any facts
suggesting the policy’s existence, are plainly insufficient.” Missel v. County of Monroe, 351 F.
App’x 543, 545–46 (2d Cir. 2009) (summary order) (citing Dwares v. City of New York, 985
F.2d 94, 100–02 (2d Cir. 1993)). It is also not enough for a plaintiff to allege that “a particular
[employee] may be unsatisfactorily trained or that an otherwise sound program has occasionally
been negligently administered.” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d

415, 440 (2d Cir. 2009).
Here, Duncan alleges Todora, the County’s Commissioner of Health and Family
Services, refused to accommodate Duncan’s request for an agency conference. In other words,
Duncan alleges an official with final decision-making authority partook in conduct that violated
her right to due process respecting her Medicaid termination. See Guzman v. United States,
2013 WL 5018553, at *3.
Accordingly, at this stage in the proceedings, Duncan’s Monell claim shall proceed.
XII. Conspiracy
The FAC contains several allegations that the defendants conspired to terminate
Duncan’s Medicaid and CDPAP services, and continue to do so. Defendants argue Duncan fails

to state a conspiracy claim.
The Court agrees.
To survive a motion to dismiss a Section 1983 conspiracy claim, a plaintiff must allege
“(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an over act done in furtherance of that goal causing damages.”
Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002). Vague or conclusory
allegations of a conspiracy to deprive an individual of some constitutional right do not provide
the proper basis for a Section 1983 claim. Id. at 325.
Here, Duncan does not allege, except in the most conclusory fashion, that defendants
entered into an agreement to deny her a constitutional right. Accordingly, the claim fails.
XIII. Americans With Disabilities Act
The State Defendants argue Duncan fails to plead a plausible ADA claim to the extent

one is asserted.
The Court disagrees.
To state a claim under the ADA, a plaintiff must establish “(1) that she is a qualified
individual with a disability; (2) that she was excluded from participation in a public entity’s
services, programs or activities or was otherwise discriminated against by a public entity; and (3)
that such exclusion or discrimination was due to her disability.” Davis v Shah, 821 F.3d 231,
259 (2d Cir. 2016). Importantly, a plaintiff must allege her mistreatment “was motivated by
either discriminatory animus or ill will due to disability.” Elbert v. N.Y.S. Dep’t of Corr. Servs.,
751 F. Supp. 2d 590, 594–95 (S.D.N.Y. 2010).
Here, Duncan alleges her requests for a fair hearing and agency conference, as well as

requests for accommodations to meaningfully participate in a hearing and conference, have been
ignored. Indeed, she alleges the defendants have “taken the position that they are not required to
accommodate [her] disability because it is an ‘unusual’ disability.” (FAC ¶ 104). These
allegations, although thin, are nevertheless sufficient at this stage of the proceedings to allege
plausibly an ADA claim. Accordingly, the claim shall proceed against the remaining defendants.
XIV. Qualified Immunity
Lastly, the Sullivan County Defendants and State Defendants argue they are entitled to
qualified immunity, and thus any claims asserted against them must be dismissed.
The Court disagrees.
Qualified immunity shields government officials whose conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The scope of qualified immunity is broad, and
it protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). “Defendants bear the burden of establishing qualified
immunity.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015).
“The issues on qualified immunity are: (1) whether plaintiff has shown facts making out
violation of a constitutional right; (2) if so, whether that right was ‘clearly established’; and
(3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the
officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d
149, 154 (2d Cir. 2013).
Duncan plausibly states claims for relief, including violations of her clearly established
constitutional right to due process respecting her Medicaid-related requests for a fair hearing and
agency conference. Duncan also plausibly states a claim respecting certain State Defendants’

refusal to enforce OTDA’s aid-continuing directives. Taking Duncan’s allegations as true, as it
must, the Court cannot conclude at this time that defendants’ conduct was objectively reasonable
under the circumstances.
Accordingly, none of the defendants is entitled to qualified immunity at this time.
XV. Leave to Amend
In an affidavit in support of Duncan’s opposition to defendants’ motions, her counsel
requests leave “to supplement the pleading with a further amendment” if the Court “considers
there should be more detail” recited in the FAC. (Doc. #133 ¶ 12).
The Court reluctantly grants Duncan a further, limited opportunity to amend.
Rule 15(a)(2) instructs that courts “should freely give leave” to amend a complaint “when
justice so requires.” However, leave to amend may “properly be denied for . . . ‘futility of
amendment.’” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)). An amendment to a pleading is futile if the proposed claim

could not withstand a motion to dismiss. F5 Capital v. Pappas, 856 F.3d 61, 89 (2d. Cir. 2017).
Here, Duncan asks for leave to again amend her already amended complaint. Reading
the FAC liberally, the Court concludes Duncan cannot plausibly allege a timely claim respecting
the 2014 termination of her Medicaid benefits and CDPAP services, or a timely claim respecting
her prior guardianship proceeding, or any plausible claim against Independent Living, Hein, or
Zucker. However, Duncan may be able to plead additional facts giving rise to a plausible claim
against individual Sullivan County Defendants, concerning the alleged failures to enforce
OTDA’s aid-continuing directives which issued within the statute of limitations period.
Accordingly, Duncan’s application for leave to file a second amended complaint is
granted, but only to the limited extent of pleading additional facts based on individual Sullivan

County Defendants’ alleged failures to implement OTDA’s aid-continuing directives issued
and/or ignored within the statute of limitations period.
CONCLUSION
Independent Living’s motion to dismiss (Doc. #112) is GRANTED.
The State Defendants’ motion to dismiss (Doc. #101) is GRANTED IN PART and
DENIED IN PART. Duncan’s claims are dismissed inasmuch as they are pleaded against
defendants Hein and Zucker. Duncan’s claims against Roberts, Isaacs, Spitzberg, and Allen
shall proceed inasmuch as they concern these defendants’ alleged failure to enforce OTDA’s aid-
continuing directives. Duncan’s claims against Isaacs shall also proceed inasmuch as they
concern Isaacs’s alleged refusal to provide Duncan a fair hearing.
Sullivan County, Todora, Moon, and Cunningham’s motion to dismiss (Doc. #108) is
GRANTED IN PART and DENIED IN PART. Duncan’s claims are dismissed inasmuch as they

are pleaded against Cunningham. Duncan’s claims against Todora and Moon shall proceed
inasmuch as they concern these defendants’ alleged failure provide Duncan an agency
conference.
Hart, Innella, and Sawall’s motion to dismiss (Doc. #118) is GRANTED IN PART and
DENIED IN PART. Duncan’s claims are dismissed inasmuch as they are pleaded against Sawall
and Innella. Duncan’s claims against Hart shall proceed inasmuch as they concern Hart’s
alleged refusal to (i) enforce OTDA’s aid-continuing directives, (ii) accommodate Duncan’s
request for an agency conference, and (iii) provide Duncan her case file.
Duncan’s third cause of action, styled “Third Claim” and asserted against Sullivan
County, Innella, Moon, and Independent Living, is dismissed as time-barred.

The Clerk is instructed to terminate Karen Kenning as a plaintiff in this case.
The Clerk is further instructed to terminate Independent Living, Inc., Howard Zucker,
and Michael P. Hein as defendants in this case.
Duncan is granted leave to file a second amended complaint for the limited purpose of
pleading additional facts against individual Sullivan County Defendants relating to OTDA’s aid-
continuing directives. Duncan shall file her second amended complaint by March 16, 2020.
Defendants’ responses thereto are due March 30, 2020.
The Clerk is instructed to terminate the motions. (Docs. ##101, 108, 112, 118).
Dated: March 2, 2020
White Plains, NY
SO ORDERED:

Vincent L. Briccetti
United States District Judge

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10321198. Public record. Not legal advice.