# Petre v. NYS Workers Compensation Board

> District Court, E.D. New York · May 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11014062

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 6, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

GHEORGHE PETRE,

Plaintiff, MEMORANDUM & ORDER
23-CV-1641(EK)(MMH)

-against-

NYS WORKERS’ COMPENSATION BOARD, PMA
COMPANIES, MYMATRIXX AN EXPRESS
SCRIPTS CO., et al.,

Defendants.

------------------------------------x
ERIC KOMITEE, United States District Judge:
Plaintiff Gheorghe Petre brings this action alleging
deprivation of due process under Section 1983. These
constitutional claims arise from the adjudication of Petre’s
claims for workers’ compensation — stemming from a twenty-five-
year-old injury — before the New York State Workers’
Compensation Board (“WCB”), and his later appeals to the New
York State Supreme Court and Appellate Division. All defendants
have moved to dismiss Petre’s pro se complaint under Rules
12(b)(1) and (6). For the reasons set out below, those motions
are granted.
I. Background
The following facts are drawn from the complaint,
documents incorporated by reference, documents integral to the
complaint, and documents of which the Court may take judicial
notice. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-3 (2d
Cir. 2002). They are assumed true for purposes of this order.
Id. at 152.

In 1999, Petre — who was then working as a machine
shop supervisor — “injured his lower back and the right foot in
a work related accident.” Compl. ¶ 4, ECF No. 1. He filed
claims for workers’ compensation benefits, both for those
initial injuries and a series of later injuries. Id. ¶¶ 4-6.
The WCB eventually (in 2004) classified Petre as permanently
disabled. Id. ¶ 8. Beginning in 2002, Petre represented
himself before the WCB. Id. ¶ 10.
A. The Physical Therapy Dispute
Under the state’s Medical Treatment Guidelines,
Petre’s benefits covered ten sessions per year of physical
therapy for his injuries. Id. ¶¶ 16, 18-19. In 2011, Petre and

his insurance carrier, American Motorists Insurance Company
(“AMICO”) signed a stipulation before a Workers’ Compensation
Law Judge. Id. ¶ 14, 121; see also ECF No. 81-1. The parties
agreed that Petre would receive substantially more therapy
sessions than the Medical Treatment Guidelines called for —
three times per week for four weeks, and then two times per
month thereafter. Id. ¶¶ 14, 16. For a time, Petre received
the sessions called for by the stipulation and those called for
by the Medical Treatment Guidelines. Id. ¶ 18.
In 2013, a state court in Illinois, where AMICO is

domiciled, placed the company into liquidation. Ancillary
Receivership Order, ECF No. 10-1. PMA Management Corporation
(“PMA”) then assumed coverage of Petre’s workers’ compensation
benefits. Compl. ¶ 124.
Beginning in August 2018, PMA determined that it would
honor the stipulation, but not also cover the Guidelines’ ten
therapy sessions per year in addition. Id. ¶ 19. Petre sought
and received a hearing before a Workers’ Compensation Law Judge,
who sided with PMA, holding that Petre was only entitled to two
sessions per month (i.e., twenty-four sessions per year),
consistent with the stipulation. Id. ¶ 20; see also ECF No. 81-
2. A WCB appellate panel affirmed, as did the full Board. Id.
¶¶ 22-23; see also ECF Nos. 81-3, 81-4.

The New York Workers’ Compensation Law permits
claimants to appeal WCB decisions to the Appellate Division of
the state Supreme Court. N.Y. Workers’ Comp. Law § 23. Petre
sought review before the Third Department, which denied his
appeal in 2021. Petre v. Allied Devices Corp., 191 A.D.3d 1086,
1088 (3d Dep’t 2021). The New York Court of Appeals denied
Petre’s motion for leave to appeal that same year. Petre v.
Allied Devices Corp., 170 N.E.3d 453 (N.Y. 2021).
B. The Prescription Dispute
In August 2021, Petre initiated another administrative
proceeding before a Workers’ Compensation Law Judge. He sought

reimbursement for a prescription anticonvulsant medication,
which PMA had declined to cover. Compl. ¶¶ 66, 68. The judge
agreed with PMA that Petre’s doctors had to seek prior
authorization before Petre could request reimbursement for the
medication. Id. ¶ 72. Petre unsuccessfully appealed this
decision, too, to an administrative panel, the full WCB, and the
Third Department. See ECF Nos. 81-5, 81-6; Petre v. Allied
Devices Corp., 213 A.D.3d 1117, 1118 (3d Dep’t 2023).
This action followed. Petre brings a Section 1983
claim for deprivation of procedural due process under the
Fourteenth Amendment.1 He seeks four remedies: (1) a declaration
that he is entitled to reimbursement for the ten additional

physical therapy sessions under the 2011 stipulation; (2) a
declaration that he is entitled to reimbursement for the
anticonvulsant without prior authorization; (3) reimbursement of
“all unpaid expenses, including co-payments, submitted in the
last four years,” with interest; and (4) the imposition of

1 In his response, Petre insists that this complaint does not invoke
Section 1983. Pl.’s Resp. to Mot. to Dismiss 3, ECF No. 82. But Petre
brings a claim under the Fourteenth Amendment. Compl. ¶ 2, 142. And “the
vehicle for a civil action to enforce a claim that arises under the
Fourteenth Amendment is [Section] 1983.” Sykes v. N.Y. State Off. of
Children & Family Servs., No. 18-CV-8309, 2019 WL 4688608, at *10 (S.D.N.Y.
Sept. 25, 2019) (citing Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)).
punitive damages and various monetary “sanctions” on the
defendants. Compl. ¶ 153.
II. Legal Standard

The defendants have moved for dismissal under Rules
12(b)(1) and (b)(6). When a party moves for dismissal under
Rule 12(b)(1) and on other grounds, a court should consider the
Rule 12(b)(1) challenge first. Rhulen Agency, Inc. v. Alabama
Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). “A case is
properly dismissed for lack of subject matter jurisdiction under
Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears
the burden of establishing subject matter jurisdiction. Id.
To overcome a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. See Lundy v.
Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d
Cir. 2013). Moreover, when a plaintiff is proceeding pro se,
courts “construe [the] complaint liberally and interpret it to
raise the strongest arguments that it suggests.” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010). That said, a pro se
plaintiff must still comply “with relevant rules of procedural
and substance law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983).
III. Discussion

Petre asserts due process claims against two
categories of defendant: (1) the WCB, a New York state agency;
and (2) various private defendants who he alleges were involved
in his workers’ compensation benefits adjudications before the
WCB and state courts — namely, AMICO (currently held in
ancillary receivership by the New York State Liquidation
Bureau), PMA, PMA’s lawyers, and PMA’s pharmacy benefit manager,
myMatrixx. He alleges that the defendants’ collective
“interference” with his “right to medical treatment” violated
the Fourteenth Amendment. Compl. ¶¶ 2, 142.
The Court concludes that it lacks jurisdiction over

Petre’s claims against the WCB. It also concludes that Petre
fails to state a Section 1983 claim against the remaining
defendants.
A. The Claim Against the WCB
Petre’s claims against the WCB are barred by sovereign
immunity. Under the Eleventh Amendment, if Congress has not
explicitly abrogated a state’s immunity from suit, a
non-consenting state is immune from suits brought by its own
citizens in federal court. Clissuras v. City Univ. of New York,
359 F.3d 79, 81 & n.3 (2d Cir. 2004) (per curiam). Section 1983
did not abrogate New York’s sovereign immunity. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 67 (1989). And

“[i]t is well-established that New York has not consented to
[Section] 1983 suits in federal court.” Mamot v. Bd. of
Regents, 367 F. App’x 191, 192 (2d Cir. 2010).
Actions brought against a state agency are actions
against the state itself. See Gollomp v. Spitzer, 568 F.3d 355,
365-66 (2d Cir. 2009). The WCB is a state agency. Palma v.
Workers Comp. Bd. of N.Y., 151 F. App’x 20, 21 (2d Cir. 2005).
So, the WCB is entitled to sovereign immunity. Id. This means
the Court lacks jurisdiction over Petre’s claims against the
WCB. Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)
(“Sovereign immunity is a jurisdictional bar . . . .”).2
B. The Claims Against the Remaining Private Defendants

While the Court has jurisdiction over Petre’s
remaining claims, he has failed to state a claim against any
private defendant.

2 Sovereign immunity does not bar injunctive relief against state actors
in their official capacity. Ex parte Young, 209 U.S. 123, 159-60 (1908).
And Petre seeks a declaration that the WCB and state court decisions
regarding his benefits are void — relief that is properly characterized as
equitable. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S.
324, 331 (1961). To the extent that sovereign immunity does not prohibit
those remedies, however, the Rooker-Feldman doctrine does. E.g., Ford v.
U.S. Dep’t of Treasury I.R.S., 50 F. App’x 490, 491 (2d Cir. 2002) (Rooker-
Feldman barred plaintiff’s request for “a declaration that the [underlying]
foreclosure judgment [was] void”).
1. Neither Burford nor Younger Abstention Applies
AMICO and the State Liquidation Bureau argue that this
Court should decline to exercise its jurisdiction over the
claims against them pursuant to Burford and Younger abstention.

Neither doctrine, however, applies here.
When a plaintiff brings a claim for money damages
under Section 1983, a court may not abstain under either Burford
or Younger. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
731 (1996) (“[F]ederal courts have the power to dismiss or
remand cases based on [Burford] abstention principles only where
the relief being sought is equitable or otherwise
discretionary.”); Rivers v. McLeod, 252 F.3d 99, 101-02 (2d Cir.
2001) (“[A]pplication of the Younger doctrine is inappropriate
where the litigant seeks money damages for an alleged violation
of [Section] 1983.”). By requesting “punitive damages” for the

alleged due-process violation, Petre has asserted such a claim.
Compl. ¶¶ 2, 142, 153. Accordingly, abstention is not
warranted.
2. The Rooker-Feldman Doctrine Does Not Apply
The remaining private defendants argue that the
Rooker-Feldman doctrine deprives the Court of subject matter
jurisdiction over the claims against them. They are also
mistaken.
The “basic theory” behind the Rooker-Feldman doctrine
is that “only the United States Supreme Court has been given
jurisdiction to review a state-court decision.” 18B Charles
Wright & Arthur Miller, Federal Practice and Procedure § 4469.1

(3d ed.). So, district courts lack jurisdiction over “cases
brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). Successful invocations
of this doctrine are the exception rather than the rule.
Indeed, the Eleventh Circuit was recently moved to opine that
“district courts should keep one thing in mind when Rooker-
Feldman is raised: it will almost never apply.” Behr v.
Campbell, 8 F.4th 1206, 1212 (11th Cir. 2021).

Some of Petre’s requested relief does fall within the
ambit of Rooker-Feldman. See supra at note 2. But Petre also
seeks money damages for deprivation of procedural due process
under the Fourteenth Amendment. Compl. ¶ 153. And if this
Court were to hold that the WCB owed Petre damages for violating
his due process rights, this conclusion would not necessarily
“call into question any of the [WCB’s] findings regarding
[Petre’s entitlement to benefits].” Phifer v. City of New York,
289 F.3d 49, 61 (2d Cir. 2002). Rooker-Feldman therefore does
not deprive the Court of jurisdiction.
3. Petre States No Claim Against the Private Defendants

Petre fails to state a Section 1983 claim against
AMICO, PMA, PMA’s lawyers, or myMatrixx because he has not
adequately alleged state action on the part of those defendants.
Section 1983 only applies to state actors. Leeds v.
Meltz, 85 F.3d 51, 54 (2d Cir. 1996). So, to state a Section
1983 claim, Petre would have to “allege facts demonstrating that
the [private defendants] acted in concert with [a] state actor
to commit an unconstitutional act.” Spear v. Town of West
Hartford, 954 F.2d 63, 68 (2d Cir. 1992). This is a high bar,
and Petre does not clear it. He alleges only that these
defendants engaged in a “premeditated conspiracy” with the WCB
to deprive him of medical treatment. Compl. ¶ 142. “A merely

conclusory allegation that a private entity acted in concert
with a state actor does not suffice to state a [Section] 1983
claim against the private entity.” Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002).
That leaves the State Liquidation Bureau. The New
York Court of Appeals has held that the Bureau is not a “state
agency” within the meaning of the New York Finance Law. See
Dinallo v. DiNapoli, 877 N.E.2d 643, 648 (N.Y. 2007) (“The
Bureau does not perform a governmental or proprietary function
for the state, but rather runs the day-to-day operations of
private businesses in liquidation pursuant to Supreme Court
order.”). This suggests that the Bureau is also not a state

actor for Section 1983 purposes, and that Petre’s claim against
the Bureau should fail for the reasons noted above.
But even if the Bureau were a state actor, Petre’s
claim would still fall short. To state a Section 1983
procedural due process claim, a plaintiff must plausibly allege
that (1) he has a property right, (2) “the government has
deprived him of that right,” and (3) “the deprivation was
effected without due process.” Henry v. City of New York, 638
F. App’x 113, 115 (2d Cir. 2016). Assuming Petre had a property
right in the workers’ compensation benefits at issue, he has not
plausibly alleged that the Bureau deprived him of that right (at
all, let alone without the process due). After 2013, the Bureau
controlled the day-to-day operations of AMICO. See Compl.
¶ 123; Dinallo, 877 N.E.2d at 648. But AMICO was not Petre’s

insurance carrier when he lost coverage for his physical therapy
and anticonvulsant medication. PMA was. See Compl. ¶¶ 26,
64-66, 124. And the Bureau was not operating PMA. So, the
complaint does not plausibly allege that the Bureau (or the
insurance carrier it operated) had any hand in the alleged
deprivations.
IV. Conclusion
For the foregoing reasons, the defendants’ motions to
dismiss are granted. The complaint is dismissed without
prejudice.3 The Clerk of Court is respectfully directed to close

the case.

SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated: May 6, 2025
Brooklyn, N ew York

3 Petre has also filed two motions to disqualify the presiding judge.
See ECF Nos. 90, 92. He cites his frustration that this case is not
proceeding quickly enough, but mere delay in the disposition of a motion does
not justify disqualification. United States v. Moritz, 112 F.3d 506 (2d Cir.
1997) (table decision); see also Riddick v. Semple, No. 18-CV-313, 2018 WL
10741347, at *1 (D. Conn. May 22, 2018). Petre’s motions for
disqualification are therefore denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11014062. Public record. Not legal advice.