Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 1 of 26

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YORK . IS 1 CÇ)UNTY OF BRONX Index ~ ~O, I \ \ SUPREME

COURT

OF THE

STATE

OF NEW

ROBERT BAREY Plaintiff designates ----- --- - --- ----- ----- -------- --------------- ------ ---- --------------- x Date F iIed:

BRONX COUNTY

as Place of Trial

Plaintiffs,

against Place ofIncident .- i..~ The basis o:(yeine is..._

6I

THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENTClFCORRCTIONS;
BERNAR B.:kIUk, GARY M. LANIGAN, SUMMONS
WILLIA J. FRASER,MATIN F. HORN,
JOHN J. ANTONELLI, and DORA B. SCHRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AN MENTAL HYGIENE

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Plaintiff s address Defendants 127 Craig Avenue
Staten Island, NY . -------------------- - ------------------------------------- --------------- x

TO thê ãbove nareil Defendant(s):

-._~--.."..~.,,"-...._'"...,._._-... ~. .: YOU AR HEREBY SUMONED to answer the Complaint in this

action

and to serve a copy of

your answer,or, if

the Complait is not served with this

Sumons, to serve a Notice of Appearance, on the Plaintiffs attorney withi 20 days

er the service .of.thssuuons,. exclusive of the date of service (or with 30 days

after the service is complete if ths sumons is not personally delivered to you withn

eState of

New York); and in the case of

your failure to appear or answer,judgment

'11 be taen agaist you

by default for the relief demanded in the Complaint.

ated: New York, New York
Februar 4, 2011

Yours, etc.

:~BURNS & HAS, ESQS.

233 Broadway, Suite 900 New York, NY 10279 212393-1000

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Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 6 of 26

TO:
CITY OF NEW YORK 1 00 Church . Street
ew York, NY 10007

YC DEPARTMENT OF CORRCTIONS 60 Hudson Street
ew York, NY 10013

BERNARD B. KERIK c/o Cumberland Federal Correction Facility Cumberland, MD

GARY M. LANIGAN

c/o NY Deparment of

Corrections

Whittlesey Road

Trenton, NJ OS625

WILLIAM J. FRASER 11 Beach 13 Sth Street pt. 138 ockaway Park, NY 11694

OHN J. ANTONELLI /0 NYC Department of Corrections 60 Hudson Street ew York, NY 10013
ORA V. SCHRIRO /0 NYC Deparent of Corrections __:~ L7 .1'"
7 s-- ¡.O A$)(7;iJ,1 /.~vv
, /ì P1.4'l,f / tVY
YC DEPARTMENT OF HEALTH AND ENTAL HYGIENE 125 Worth Street ew York, NY 10013

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 7 of 26

SUPREME COURT OF THE STATE OF NEW

YORK

~~-~-~~~-~~:L~~~~-------------------------------------______~~_~ex # 3 Û 1 1 ;) 1. ) 1\

Against

Plaintiffs

VERIFIED COMPLAINT

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

FEB -720111

Defendants
-------------------------------------------- ------- ----------------------- )(

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. The occurrences which are the subject of this action took place

in the County of Bronx.

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

t all times relevant hereto, the defendant CITY OF NEW YORK, action

hrough the NYC Department of Corrections ("DOC") was responsible for the

olicy, practice, supervision, implementation and conduct of all DOC matters

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 8 of 26

nd was responsible for the appointment, training, supervision, and conduct

f all DOC personneL. In addition, at all relevant times, defendant CITY OF NEW YORK was responsible for enforcing the rules of the DOC, and for

nsuring that DOC personnel obeyed the Constitution and laws of the United

tates and of the State of New York.

4. Defendant BERNARD KERIK was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

o the CITY OF NEW YORK Agency under his control, including the NYC
DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

ORRECTIONS principal place of business is 60 Hudson Street, County of

ew York, City and State of New York. Commissioner BERNARD KERIK is

ued in his individual and official capacity.

5. Defendant GARY M. LANIGAN was the Commissioner of the

YC Department of Corrections and as such, was a policy maker with respect

o the CITY OF NEW YORK Agency under his control, including the NYC
EPARTMENT OF CORRECTIONS. The DEPARTMENT OF

ORRECTIONS principal place of business is 60 Hudson Street, County of

ew York, City

and State of New York. Commissioner GARY M. LANIGAN is

ued in his individual and official capacity.

6. Defendant WILLIAM J. FRASER was the Commissioner of the

YC Department of Corrections and as such, was a policy maker with respect

o the CITY OF NEW YORK Agency under his control, including the NYC
EPARTMENT OF CORRECTIONS. The DEPARTMENT OF

2

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 9 of 26
CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner WILLIAM J. FRASER is sued in his individual and official capacity.
7. Defendant MARTIN F. HORN was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect
to the CITY OF NEW YORK Agency under his control, including the NYC
DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF
CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner MARTIN F. HORN is sued in his individual and official capacity.
8. Defendant JOHN J. ANTONELLI was the Commissioner of the
NYC Department of Corrections and as such, was a policy maker with respect to the CITY OF NEW YORK Agency under his control, including the NYC
DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF
CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner JOHN J. ANTONELLI is sued in his individual and official capacity.
9. Defendant DORA B. SCHRIRO was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect
o the CITY OF NEW YORK Agency under her control, including the NYC
DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF
ORRECTIONS principal place of business is 60 Hudson Street, County of
3

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 10 of 26
New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF
CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for
overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the
policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personneL. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK
operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicabilty of CPLR §214-(c)(4). FIRST CAUSE OF ACTION:
(POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
13. This is a Civil Rights action brought pursuant to the United
tates Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C
4

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 11 of 26
§1983 and the New York State Constitution and seeks redress for
defendants' deprivation, under color of State law, of plaintiff's rights,
privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
14. That at all times mentioned herein, and from on or about
October, 1993 until September, 2007 plaintiff ROBERT BARLEY worked as a
Cook at Rikers Island Correctional Facility, located at 10-10 Hazen Street,
County of Bronx, City and State of New York.
15. That from on or about October, 1993 until September, 2007,
plaintiff ROBERT BARLEY was exposed to carcinogens and/or toxins at and
upon said premises.
16. That the plaintiff ROBERT BARLEY was not diagnosed with
thyroid cancer until on or about March 1, 2008.
17. That at all times mentioned herein, the defendant CITY OF
NEW YORK was the owner of premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
18. That at all times mentioned herein, the defendant CITY OF
NEW YORK operated premises known as. RIKERS ISLAND
ORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
19. That at all times mentioned herein, the defendant CITY OF
EW YORK maintained premises known as RIKERS ISLAND
5

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 12 of 26
CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
20. That at all times mentioned herein, the defendant CITY OF
NEW YORK managed premises known as RIKERS ISLAND
CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
21. That at all times mentioned herein, the defendant CITY OF
NEW YORK controlled premises known as RIKERS ISLAND
CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
22. That at all times mentioned herein, the defendant CITY OF
NEW YORK supervised premises known as RIKERS ISLAND
CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
23. That at all times mentioned herein, the defendant CITY OF
NEW YORK renovated premises known as RIKERS ISLAND
CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
Bronx, City and State of New York.
24. That at all times mentioned herein, the defendant CITY OF
NEW YORK repaired premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
6

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 13 of 26
25. That at all times mentioned herein, the defendant CITY OF
EW YORK inspected premises known as RIKERS ISLAND
ORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
ronx, City and State of New York.
26. That at all times mentioned herein, the defendant CITY OF
EW YORK hired contractors at premises known as RIKERS ISLAND ORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of
ronx, City and State of New York.
27. At all times mentioned herein, defendants have instituted and
re continuing to enforce a policy, practice and custom to cause, permit, allow
nd require persons legally upon said premises to be exposed to toxic, ancerous substances which are present at Rikers Island, 10-10 Hazen
treet, Bronx, NY.
28. Defendants had a policy, practice and custom of causing,
ermitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic ubstances while legally upon said premises.
29. That the deprivation of plaintiff's constitutional rights was the
esult of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS NO COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS AMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH NO MENTAL HYGIENE'S custom and/or policy of concealing the known xistence of cancer causing toxins present at Riker's Island.
7

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 14 of 26

30. That the deprivation of plaintiff's constitutional rights was the

result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS

AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS

NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH

AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to class

plaintiffs that Riker's Island was a safe and secure work environment.

31. That the deprivation of plaintiff's constitutional rights was the

result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS

AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS

NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH

NO MENTAL HYGIENE'S custom and/or policy of depriving life, liberty

and

the pursuit of happiness to those present on Riker's Island.

32. That the deprivation of plaintiff's constitutional rights was the

result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS

NO COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS

NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH

NO MENTAL HYGIENE'S custom and/or policy of violating the due process

rights of those present on Riker's Island.

33. All defendants, THE CITY OF NEW YORK, NEW YORK CITY

DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M.

LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI,

DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF

HEALTH AND MENTAL HYGIENE acted under pretense and color of state

8

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 15 of 26
law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their 'urisdiction, without authority of law, and in abuse of their powers, and said defendants acted wilfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
34. Exposure of plaintiff to toxins and carcinogens deprive the
plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
35. At all times relevant hereto, defendant CiTY OF NEW YORK
caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
36. At all times relevant hereto, defendant CiTY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing,
permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
37. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each
of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the City of New York and the County of Bronx.
9

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 16 of 26
38. That from approximately October, 1993 to September, 2007, the
plaintiff, ROBERT BARLEY, was lawfully and properly present upon the
premises mentioned herein. 39. Commencing approximately October, 1993 to September, 2007,
plaintiff ROBERT BARLEY was exposed to toxic, cancerous substances which are present at said premises.
40. That commencing approximately October, 1993 to September, 2007, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
41. The CiTY OF NEW YORK, its agents, servants and/or
employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of he policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
42. That at all times mentioned herein, the defendant CITY OF
NEW YORK had a duty to operate, maintain, manage, control, repair,
renovate supervise and inspect the said premises herein.
43. That at all times mentioned herein, the defendant CITY OF
NEW YORK had a duty to operate, maintain, manage, control, repair,
10

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 17 of 26
renovate, supervise and inspect the said premises in a reasonably safe and
suitable condition and repair.
44. As a result of the aforesaid plaintiff ROBERT BARLEY was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under
color of State Law in violation of 42 U.S.C. §1983.
45. As a further result of the deprivation of plaintiff ROBERT
BARLEY's right to be free from the deprivation of rights guaranteed to him by
the Fourth, Fifth and Fourteenth Amendment to the United States
Constitution, he was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
46. From on or about October, 1993 to 2007 in violation of the
rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S.C. Section 1983.
47. That at all times mentioned herein, the defendant CITY OF
NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
48. That at all times mentioned herein, the defendant CITY OF
NEW YORK had a duty to warn persons of the hazardous and dangerous onditions existing at said premises.
11

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 18 of 26
49. That at all times mentioned herein, the defendant CITY OF
EW YORK had a duty to comply with the New York City Health Code and ther applicable sections, regulations and statutes under New York State,
ocal and federal law.
50. That at all times mentioned herein, toxins and/or carcinogens ere present upon said premises.
51. That at all times mentioned herein, toxins and/or carcinogens
ere present upon said premises and were known or should have been
nown to be present upon said premises.
52. That at all times mentioned herein, said carcinogens and/or
oxins were caused, permitted and allowed to be and remain upon said remises.
53. That at various and diverse times from on or about 1993 to the
resent and for a period of time prior and subsequent thereto, there existed a
angerous, defective and unsafe condition, including the presence of
arcinogens and/or toxins, upon said the premises.
54. That at various and diverse times from 1993 and for a period of
ime prior and subsequent thereto, the defendants maintained a dangerous,
efective and unsafe condition, including the presence of carcinogens and/or
oxins upon said premises.
55. That at various and diverse times from 1993 and for a period of
ime prior and subsequent thereto the defendants, their agents, servants
12

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 19 of 26
nd/or employees created a dangerous, hazardous and unsafe condition, ncluding the presence of carcinogens and/or toxins upon said premises.
56. At all times mentioned herein, it was the duty of the defendants
o maintain the premises in a reasonably safe and proper condition and free f dangerous, hazardous, and unsafe conditions, including the presence of arcinogens and/or toxins upon said premises.
57. At all times mentioned herein, it was the duty of the defendants
o maintain the premises in a reasonably safe condition for use by members f the general public.
58. That at all times mentioned herein, such culpable conduct was a
roximate causeof the plaintiff's serious injuries.
59. That at all times relevant hereto, it was the duty of the
efendants their servants, agents, and/or employees to conduct and
upervise the maintenance, renovation, inspection, and repair operations at
aid premises in a lawful fashion to prevent the presence of carcinogens
nd/or toxins at said prernises.
60. That carcinogens and/or toxins were present at said premises,
rom the time the plaintiff ROBERT BARLEY was employed there, which was pproximately from October, 1993 until September, 2007.
61. That at all times mentioned herein, the defendants, their agents,
ervants and/or employees breached their duty to operate, maintain, manage,
upervise and control the aforesaid premises in a reasonable and safe
ondition.
13

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 20 of 26

62. That at all times mentioned herein, the defendants, their agents,
servants and/or employees breached their duty to take the necessary
precautions and remedies to render the said premises habitable and safe for occupancy.

63. That at all times mentioned herein, the defendants, their agents,
ervants and/or employees failed to warn persons of the hazardous and
angerous conditions existing at said premises.
64. That at all times mentioned herein, the defendants, their agents,
ervants and/or employees breached their duty to comply with the New York
ity Health Code and other applicable sections, regulations and statutes

under New York State, local and federal

law.

65. That at all times mentioned herein, the defendants, their agents,
ervants and/or employees breached their duty to conduct and supervise the aintenance, renovation, inspection and repair operations at said premises in lawful fashion to prevent the presence of carcinogens and/or toxins at said remises.
66. Although defendants knew or should have known of the fact that oxic cancerous substances were present at the said premises, the defendant ITY OF NEW YORK has not taken any steps or made any efforts to halt this ourse of conduct, to make redress to the plaintiff or other citizens injured hereby.
67. The unlawful and illegal conduct of the defendants, their agents,
ervants and/or employees to cause, allow and permit the exposure of

14

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 21 of 26
plaintiff to toxins and carcinogens deprived the plaintiff of his Constitutional
rights to life, liberty and the pursuit of happiness and substantive and
procedural due process under the Fourth, Fifth and Fourteenth Amendment to he United States Constitution.
68. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained
evere nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and
motional anguish, distress and psychological damages and difficulties, some f which injuries are permanent in nature and duration, and plaintiffs will be ermanently caused to suffer pain, inconvenience and other effects of such
injuries; plaintiffs incurred and in the future will necessarily incur further
ospital and/or medical expenses in an effort to be cured of said injuries; and laintiffs have suffered and in the future will necessarily suffer additional loss f time and earnings from employment; and plaintiffs will be unable to pursue he usual duties with the same degree of efficiency as prior to this occurrence, II to plaintiffs' great damage.
69. That commencing on or about October, 1993 to September,
007, in violation of the rights, privileges and immunities guaranteed to him nder the Fourth, Fifth and Fourteenth Amendments to the United States
onstitution and under the color of State law, the defendants acted
ndividually and in concert causing the plaintiff to have been injured and
15

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 22 of 26
damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
70. That the negligence of the defendants CITY OF NEW YORK, its
agents, servants and/or employees consisted of the following: in the
negligent, careless and reckless ownership, operation, management,
maintenance and control of the aforesaid premises in that they knowingly,
and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable
condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permittng, causing and/or allowing a dangerous and hazardous condition
o be, remain and exist upon the premises; in causing, allowing and
permittng the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known hat they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in ailing to repair, timely repair and/or properly repair and maintain the aforesaid remises although the defendants had notice or should have had notice of the
nsafe conditions complained of herein; in negligently and carelessly
16

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 23 of 26
repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating
statutory obligations; in violating the Health Code and other applicable
sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in
knowingly permittng said carcinogens and/or toxins to remain for an
unreasonable period of time; in failing to take the proper and necessary steps
to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff ROBERT BARLEY of rights guaranteed to him by the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution. 71. That as a result of the foregoing, the plaintiff ROBERT BARLEY
as caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
72. That this action falls within one or more of the exceptions set orth in CPLR Article 16.
73. That by reason of the foregoing, plaintiff ROBERT BARLEY,
has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in
n amount to be determined upon the trial of this action. WHEREFORE, plaintiffs demand judgment against the defendants on
he defendant in an amount which exceeds the monetary jurisdictional limits
17

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 24 of 26 of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the
ate of this occurrence. Dated: New York, New York
February 4, 2011 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff
Byat"o
233 Broadway, Suite 900 New York, NY 10279 212393-1000
18

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 25 of 26

RE: Robert Brley

ATTORNEY VERIFICATION

CHRISTOPHER J. DONADIO, ESQ., an attorney duly admitted to
practice law in the Courts of the State of New York, shows:

I am the attorney for the plaintiff in the within action and have read the
foregoing COMPLAINT the contents thereof; the same is true upon
information and belief.

This verification is made by this affirmant and not by said plaintiff because said plaintiff reside(s) in a County other than the County wherein
your affirmant maintains her office.

The grounds of affirmants knowledge and belief are as follows: Conference with clients and notes and records contained in the file
maintained in the regular course of business.

The undersigned affirms that the foregoing statements are true under the penalties of perjury.

Dated: New York, New York February 4, 2011

~aOPHÉR~DIO

Case 1:11-cv-01300-LAP Document 1 Filed 02/24/11 Page 26 of 26
CSUOPRUEMNETCOYURTOOFFTHEBSTRAOTENOFXNEWIYnORdKex #
---------------------------------------------------------------------------x ROBERT BARLEY
Plaintiffs
Against
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRCTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE
Defendants -----------------------------------"--------------------------------------)(

SUMMONS

AND

VERIFIED COMPLAINT

BURNS & HARRS, ESQS. Attorneys for Plaintiff Offce & P. O. Address
233 Broadway, Suite 900 New York, NY 10279 212393-1000 Fax: 212267-2110

 
 Part Description 1 17 pages 2 Exhibit amended complaint 3 Exhibit amended complaint 4 Exhibit amended complaint 5 Exhibit amended complaint 6 Exhibit amended complaint 7 Exhibit amended complaint

Multiple Documents

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Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 1 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------------)(
ROBERT BARLEY,
Plaintiff,
-against-
CITY OF NEW YORK, et al. Defendants.
--------------------------------------------------------------------------)(

11 CV 1300 (RJH)
AFFIRMATION IN OPPOSITION AND IN SUPPORT OF CROSS MOTION

--------------------------------------------------------------------------)(
RALPH RAJA, Plaintiff,

11 CV 1301 (RJH)

-against-

THE CITY OF NEW YORK, et al.

Defendants.
----------------------------------------------------------------------><

----------------------------------------------------------------------)(
MARIA NEE, Plaintiff,

11 CV 2149 (RJH)

-against-

THE CITY OF NEW YORK, et al.

Defendants.
----------------------------------------------------------------------)(

----------------------------------------------------------------------><
JOHN PACCIONE and MADELINE PACCIONE Plaintiffs,

11 CV 2150 (RJH)

-against-

THE CITY OF NEW YORK, et al.

Defendants .
. ----------------------------------------------------------------------><

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 2 of 17

----------------------------------------------------------------------)(
DAMARIE AQUINO Plaintiff,
-againstTHE CITY OF NEW YORK, et al.
Defendants.
----------------------------------------------------------------------)( ----------------------------------------------------------------------)(
MARVA HARRISON Plaintiff,
-againstTHE CITY OF NEW YORK, et al.
Defendants.
----------------------------------------------------------------------)(

11 CV 2697 (RJH) 11 CV 3277 (RJH)

CHRISTOPHER J. DONADIO, ESQ., an attorney duly admitted to practice law in

the Courts of the State of New York, affirms the truth of the following under the penalties of perjury:

1.

I am an attorney in the law firm of BURNS & HARRIS, ESQS., attorneys

for the plaintiff in the above-captioned matter and, as such, am fully familiar with the

facts and circumstances herein based upon my review of the file maintained in this

office.

2. I submit this Affirmation in Opposition to the within Motion of defendants to

dismiss plaintiff's complaint and in Support of Plaintiffs cross motion for Leave to Amend

. the Complaint.

I

3. This is an action for a violation of the Plaintiffs civil rights when they were

exposed to harmful toxic chemicals while employed at Rikers Island, after receiving

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 3 of 17
representations from the Defendants that Rikers Island was a safe working environment.
4. Plaintiffs rely on the Statement of Facts and Procedural History provided by Defendants in their Memorandum of Law.
5. As shall be demonstrated infra, defendants' motion for judgment on the 1pleadings should be denied in its entirety. Additionally, plaintiffs motion for leave to
amend the complaint should be granted. DEFENDANTS HAVE VIOLATED PLAINTIFFS SUBSTANTIVE DUE PROCESS RIGHTS
6. Plaintiffs have brought this action against the Defendants under 42 U.S.C. § 1983. In order to properly plead a 1983 cause of action against a municipality, a party must plead (1) an official policy or custom that (2) causes plaintiff to be subjected to (3) a denial of a constitutional right. Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). However, there is no requirement for an official custom or policy to be proven in order for a claim to be brought against the individual ' Defendants. .!.Q, In this case, Plaintiffs have alleged that their substantive due process rights derived from the Fourteenth Amendment have been violated by misrepresentations that Defendants made to the Plaintiffs regarding their safety on Rikers Island. As such, plaintiffs have a valid cause of action under 42 U.S.C. § 1983 against the Defendants and the motion for judgment should be denied.
7. "The doctrine of substantive due process protects the individual against certain government actions 'regardless of the fairness of the procedures used to implement them."' Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665 (1986). In order to bring a substantive due process claim, "a plaintiff must show a fundamental

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 4 of 17

right protected by the constitution, a deprivation of that right, and 'arbitrary' and

'outrageous state conduct that. .. 'shocks the conscience."' Walker v. City of Waterbury,

601 F.Supp.2d 420, 424 (D. Conn. 2009). In order to "'shock the conscience,' conduct
I must be such that it 'offend[s] even hardened sensibilities,' or constitute force that is
1 'brutal' and 'offensive to human dignity."' Nayak v. Pivarunas, 2011 U.S.Dist.LEXIS

26315 (W.D.N.Y. 2011) citing Rochin v. California, 342 U.S. 165, 172-74, 72 S.Ct. 205,

209-11 (1952), cert. denied, 341 U.S. 939, 71 S.Ct. 997. The government conduct must
i,be "sufficiently severe, sufficiently disproportionate to the need presented and so
I deliberate and unjustified a misuse of [authority] as to transcend the bounds of ordinary

tort law and establish a deprivation of constitutional rights." Shillingford v. Holmes, 634

F.2d 263, 266 (5th Cir. 1981 ),

8. The Second Circuit, as well as various other Circuits, have recognized the

ability to bring a claim under 42 U.S.C. § 1983 for a violation of substantive due process

rights. See Morales v. New York State Department of Corrections, 842 F.2d 27 (2nd

Cir. 1988) (finding that a state prison guard's deliberate indifference to the

consequences of his conduct may support a claim under 1983); Wood v. Ostrander, 879

F.2d 583 (9th Cir. 1989) (holding that a police officer leaving a person on the side of a

road in a high crime area amounted to a deliberate indifference that was grounds for a

claim of a violation of substantive due process rights); Metzger v. Osbeck, 841 F.2d 518

(3rd Cir. 1988) (holding that the use of excessive force to discipline a student may be a

violation of substantive due process rights).

I

9. In Morales v. New York State Department of Corrections, 842 F.2d 27, the

plaintiff was injured when he was attacked in his dormitory while incarcerated in a New
1
I

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 5 of 17
York State prison. !fLat 29. Based on testimony from the plaintiff, a corrections officer stood and watched the assault take place and did not attempt to stop it from occurring. ld. Defendants filed a 12(b)(6) motion, claiming that the plaintiff could not put forth any facts that would entitle him to relief. !fL The Second Circuit overturned the district court's granting to the motion, holding that "a state prison guard's deliberate indifference to the consequences of his conduct for those under his control and dependent upon him may support a claim under §1983." !fLat 30.
10. In Wood v. Ostrander, 879 F.2d 583, the plaintiff brought an action against a police officer for his conduct related to a traffic stop. The plaintiff was a passenger in a car that the defendant pulled over for having its high beams on. !fLat 586. The driver of the vehicle was arrested for driving while intoxicated and the vehicle was impounded. The plaintiff was left on the side of the road by the defendant officer. !fL While trying to walk home, plaintiff was picked up by an unknown driver who took her to a wooded area and raped her. !fL Plaintiff brought a substantive due process claim against the officer for leaving her on the side of the road in a dangerous neighborhood. The court found that the "facts put in issue by Wood that Ostrander arrested the driver, impounded the car, and left Wood by the side of the road at night in a high-crime area - show an assertion of government power which, according to Wood's version of the case, tends to 1show a disregard for Wood's safety amounting to a deliberate indifference." !fL at 588. The court concluded that "Wood has raised a genuine factual dispute regarding whether
IOstrander deprived her of a liberty interest protected by the Constitution by affirmatively
placing her in danger and then abandoning her." !fLat 596.

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 6 of 17
11. In Metzger v. Osbeck, 841 F.2d 518, the plaintiff brought an action against a school teacher who used forced as a means to discipline the plaintiff. Defendant placed his arms around the plaintiff's neck and shoulders in order to discipline him for
using foul language. .!!;L at 520. As a result of the force, the plaintiff passed out and fell
Ito the ground and broke his nose and fractured several teeth. .!!;L The plaintiff brought
an action against the defendant under 42 U.S.C. §1983, for a violation of plaintiff's
substantive due process rights. .!!;L The Third Circuit concluded that "a decision to
discipline a student, if accomplished through excessive force and appreciable physical pain, may constitute an invasion of the child's Fifth Amendment liberty interest in his personal security and a violation of substantive due process prohibited by the
Fourteenth Amendment. .!!;L
12. Plaintiffs' claims against the defendants in our present action are based on a violation of their substantive due process rights arising from the Government/State Endangerment theory of recovery. This theory of recovery has been defined by the District of Columbia Circuit, and has been recognized in the Second Circuit. See Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001) (finding that individuals have a constitutional right not to have their employers take affirmative acts that result in employee's harm); Briscoe v. Potter, 355 F.Supp.2d 30 (D.C. D. 2004) (holding that the state endangerment theory puts forth a valid constitutional right); Lombardi v. Whitman, 485 F.3d 73 (2nd Cir. 2007) (finding that employees harmed by affirmative acts of [.employers may have valid constitutional right violation claim).
'.1'
13. The State Endangerment theory has been defined as a theory "that makes a government official 'liable for third-party injury where the government official

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 7 of 17
affirmatively acts to create or enhance the danger that ultimately results in the individual's harm."' Briscoe v. Potter, 355 F.Supp.2d 30 (D.C.D. 2004) citing Plaintiff [ Briscoe's Sur-Reply Brief. "[W]hether Defendants can be held liable under the theory of State Endangerment requires a two-part analysis, which raises the following questions: (1) has there been an affirmative act by Defendants to create or increase the danger that resulted in harm to Plaintiffs and, if so, (2) does that act shock the conscience?" !Q,_ at 43. In Lombardi v. Whitman, 485 F.3d 73, 81 (2nd Cir. 2007), the Second Circuit recognzied that there is "support for the idea that a substantive due process violation
14. In Briscoe, the plaintiffs brought an action against the governmental defendants for a variety of claims, including a substantive due process violation under 42 U.S.C. 1983. The due process violation was based on the governmental defendants' ·misleading the plaintiffs, United States Post Office employees, when the plaintiffs were
Iinformed that they were not at risk of being harmed by anthrax that had come through a
postal facility. In order to evaluate the legitimacy of the claim, the District of Columbia District Court performed the two part test which is required to bring a government endangerment claim. In analyzing the claim, the District Court relied heavily on the , District of Columbia Circuit Court decision Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001), where the Circuit Court acknowledged the existence of a State/Government Endangerment theory upon which a substantive due process I violation may be brought.
I

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 8 of 17
15. The first part of the test asks whether or not the plaintiffs have alleged an
affirmative act by the defendants that increased plaintiff's harm. Plaintiffs alleged that
by Defendants misrepresentations about the safety of the postal facility, Defendants
made an affirmative action that harmed the plaintiffs. .!!;L at 44. Defendants argued as
the defendants do in our present case, that plaintiffs claim must fail as a result of the
United States Supreme Court's decision in Collins v. Citv of Harker Heights, 503 U.S.
115, 112 S.Ct. 1061 (1992), citing that a failure to warn plaintiffs about danger of a work
1 place does not expose them to liability. .!!;L Despite this argument by Defendants, the
Court held that
Plaintiffs' allegations are not premised upon the notion that Defendants violated their substantive due-process rights solely by failing to warn them of known risk or to provide them with a safe working environment. Instead, Plaintiffs allege that Defendants made affirmative misrepresentations about the safety of the facility. While it is clear that Plaintiffs do not allege that Defendants created the danger at [the postal facility], Plaintiffs contend that by providing false safety briefings and representing to employees that there was no evidence of anthrax contamination at the facility (despite alleged actual knowledge to the contrary) Defendants increased the risk that Plaintiffs would be exposed to deadly anthrax spores and made Plaintiffs more vulnerable to such danger." .!!;L at 44.
16. Based on the Court's analysis, it concluded that the Plaintiffs "sufficiently
alleged that Defendants took the requisite affirmative actions to trigger liability under the
State Endangerment Theory to withstand dismissal on the pleadings." .!!;L at 45. The
Court then proceeded to the second part of the State Endangerment analysis, which
requires a finding that Plaintiffs have alleged that Defendants' conduct shocks the
conscience . .!!;L The Court acknowledged that "[w]hile it is generally intentional conduct
that satisfies this stringent requirement, the Supreme Court has instructed that, in
I
certain situations, 'deliberate indifference can rise to a constitutionally shocking level."'

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 9 of 17
ld. at 46, citing County of Sacramento v. Lewis, 523 U.S. 833, 852, 118 S.Ct. 1708 (1998). The Court held that for the fact pattern in the case, it was appropriate to use a standard of deliberate indifference. l.Q., The Plaintiffs alleged that "Defendants acted with deliberate indifference because they knew that (the postal facility) was
I contaminated with anthrax, yet, to keep the employees working, they continued to make
I
.1 affirmative misrepresentations were made concerning the facility's safety." l.Q., at 46.
I
The Court agreed with Plaintiffs assertion and held that plaintiffs "sufficiently alleged that Defendants' conduct amounted to deliberate indifference, which violated their substantive due-process rights under the State Endangerment theory." l.Q.,
17. Despite the finding by the Court that the Plaintiffs had sufficiently put forth a claim of a violation of substantive due process on the basis of the State
IEndangerment theory, the claim was ultimately dismissed on the basis of qualified
immunity. The Court held that "the contours of the constitutional duty arising under the State Endangerment theory were not sufficiently clear at the time of Defendants' alleged conduct such that they would understand that what they were doing violated Plaintiffs' rights." l.Q., at 47.
18. The situation in Briscoe is similar to our present action. Here, the plaintiffs are all current or retired New York City Corrections Officers who have worked for a period of time at Riker's Island and have been diagnosed with cancer. During the time jthat the plaintiffs were employed at Rikers Island, they were repeatedly informed by Defendants that there weren't any toxins or carcinogens located on Rikers Island. Despite these assertions, Defendants had knowledge that the soil, water and air of
I
1Rikers Island were contaminated with toxins and carcinogens. Throughout the past

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 10 of 17
several decades, Defendants have performed repeated testing of the soil, water and air.
I Upon information and belief, the tests have repeatedly shown that there were
hazardous, cancer causing toxins in the soil, water and air of Rikers Island. See Plaintiffs' Proposed Amended Complaint, annexed hereto as Exhibit "A".
19. As noted above, in order to bring a valid cause of action for a violation of substantive due process rights under the state endangerment theory, plaintiffs must meet the two part test established in Briscoe. The first part asks whether or not the plaintiffs have alleged an affirmative act by the Defendants that increased the plaintiffs harm. Here, by informing the plaintiffs that there were no harmful, cancer causing toxins on Rikers Island, Defendants increased plaintiffs harm of contracting cancer. The second part of the test asks whether or not the Defendants conduct shocks the conscience. As the court found in Briscoe, when employers are aware of a hazard to their employees and opt to provide the employees misinformation that may ultimate lead to the death of the plaintiff, it can be said that the employer's conduct shocks the conscience. Here, Defendants provided misinformation to plaintiffs which ultimately lead to their contracting cancer. The Defendants have no excuse for providing the
Imisinformation. Therefore, the conduct clearly shocks the conscience.
20. As this honorable Court is aware, at this early stage in the proceedings "the court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff." See Briscoe v. Potter, 355 F.Supp.2d 130, 37, (D.D.C. 2004), citing Alexis v. District of Columbia, 44 F.Supp.2d 331, 336-7
~~representations I (D.D.C. 1999). Here, the Plaintiffs have alleged that the Defendants have made throughout the plaintiffs' time as corrections officers on Riker's Island

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 11 of 17
that the officers are not at risk of contracting cancer as a result of their time on the island. Despite the representations, plaintiffs allege that Defendants were aware that
Ithere existed harmful, carcinogens on the island that were causing large numbers of
[ Correction's Officers to contract cancer. As a result of the allegations pled by Plaintiffs, and the similarity of the present action to Briscoe, and that qualitative immunity does not apply to the Defendants in this action (argument regarding Qualitative Immunity, infra) Plaintiffs' action should not be dismissed. 21. In addition, qualified immunity does not apply to defendant CITY OF NEW YORK. As defendant CITY OF NEW YORK through its employees had a custom and/or policy of providing misinformation regarding the toxins and carcinogens on Rikers Island, the CITY OF NEW YORK is not entitled to a judgment on the pleadings. 22. Defendants' contend that plaintiff does not have a valid cause of action based on the U.S. Supreme Court's holding in Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061 (1992) and the Second Circuit's holding in Murray v. Connetguot Central School District of Islip, 54 Fed. Appx. 18 (2nd Cir. 2002) and McCiarvv. O'Hare, 786 F.2d 83,88 (2nd. Cir. 1986). 23. In Collins, supra, the plaintiff brought an action against a municipality under 42 U.S.C. §1983, seeking damages for fatal injuries suffered by the employee in the course of his employment because defendant failed to train or warn its employees about known hazards in the workplace. !Q, 117. At the outset of the opinion, Justice Stevens explained that the "question presented is whether §1 of the Civil Rights Act of 1871, Rev. Stat. §1979, 42 U.S.C. § 1983, provides a remedy for a municipal employee

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 12 of 17
who is fatally injured in the course of his employment because the city customarily failed to train or warn its employees about known hazards in the workplace." ]J:L
24. The case involved an employee in the sanitation department of the defendant municipality, who died of asphyxia after entering a manhole to unstop a
i
sewer line. The plaintiff alleged that the city violated the employees constitutional rights by "following a custom and policy of not training its employees about the dangers of working in sewer lines and manholes, not providing safety equipment at jobsites, and not providing safety warnings." In addition, the plaintiff also alleged that "a prior incident
I had given the city notice of the risks of entering the sewer lines and that the city had
1 systematically and intentionally failed to provide the equipment and training required by
II a Texas statute." ]J:L at 118.
25. In its decision, the Court explained that "[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression."' ]J:L at 126, citing DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 196, quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986). Despite this, the court found that plaintiff's two theories of liability could not succeed. First, the Court found that the minimal safety
Itheory could not be successful because the plaintiff voluntarily accepted his position and
therefore the city did not have an obligation to provide minimal safety standards under the due process clause. ]J:L at 128-129. As for the second theory, the Court stated that !they were "not persuaded that the city's alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 13 of 17

I
arbitrary, or conscience shocking, in a constitutional sense." As a result, the Court

found that due process violation did not occur.

26. In Murray v. Connetquot Central School District of Islip, 54 Fed. Appx. 18

(2nd Cir. 2002), the plaintiffs brought an action against a municipal defendant as a

result of being exposed to carcinogens while driving buses for the municipal defendant.

The plaintiffs alleged a violation of their civil rights under 42 U.S.C. § 1983, through

defendants violation of the plaintiffs rights under the Due Process Clause. As discussed

by the Second Circuit, plaintiffs' complaint "premises the due process claim on a denial

of a minimal level of workplace safety in public employment, or on defendants'

deliberate indifference to plaintiffs' safety." Js!. at 19. As the theories alleged in the

complaint were identical to those in Collins, the Court followed the U.S. Supreme

Court's decision and dismissed plaintiff's case.

1 1

27. In McClary v. O'Hare, 786 F.2d 83,88 (2nd. Cir. 1986), the Second Circuit

dealt with a situation where the plaintiff was killed as a result of a cable breaking on a

construction site. The plaintiff's estate brought several claims against the County who

was responsible for the worksite, including a claim for a violation of the substantive due

process rights of the plaintiff. In beginning its analysis of the substantive due process

claim, the court began by acknowledging that "[i]t thus may fairly be said that a person
Ihas a substantive due process right not be deprived of life." The court continued its

[analysis by reviewing the conduct of the governmental entity in that particular case.

iThe court held that because plaintiff was harmed as a result of a cable breaking, "while
I

lthe
I

result

was

tragic,

it

does

not

amount

to

a

deprivation

without

due

process

of

law

in

\this substantive sense." Js!. at 89.

I

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 14 of 17
28. Upon making its decision in McClary, the Second Circuit included the
following footnote, commenting on the decision:
Although we hold that reckless acts of a government employer that
harm employees do not give rise to a substantive due process violation as long as the challenged conduct is not uniquely governmental in character, we by no means intend to exclude grossly negligent, reckless, or intentional abuses of governmental authority from the purview of section 1983. See Daniels, 54 U.S.L.W. at 4092 & n.3; Davidson, 54 U.S.L.W. at 4096 (Brennan, J., dissenting). Nor do we view this decision as a grant of immunity to government employers acting as such. Where harms caused by government employers to their employees are attributable to the abuse of the government's authority rather than to an ordinary tort. such harms would continue to be actionable under section 1983.
McClary, 786 F.2d at 89, n. 6.
29. The situation in Collins, Murray and McClary are distinguishable from our
current case. The theories posed in Collins, Murray and McClary dealt with Defendants
failure to warn or a deliberate indifference to the safety of the employees at the
workplace. These are not the theories posed in our present case. Here, the theory
posed by the plaintiffs is that the defendants violated their substantive due process
Irights under the State/Government Endangerment Theory. As the Court explained in
Briscoe, the Endangerment Theory was not addressed by the Supreme Court in Collins.
In addition, the Court in Briscoe noted that the Endangerment Theory is distinct from the
theories posed in Collins, Murray and McClary in that it deals with an affirmative
misrepresentations about safety rather than a failure to warn or failure to provide a safe
working environment. Briscoe, 355 F.Supp.2d 30, 44. As such, the Court's decisions in
Collins, Murray and McClary do not apply to our current case.
I

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 15 of 17

DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY

30. As cited by the Defendants, qualified immunity is only available when a

governmental official does not violate "clearly established statutory or constitutional

rights of which a reasonable person would have known." Pearson v. Callahan, 129

S.Ct. 808, 815 (2009). As a result of the individual Defendants violation of a defined

Constitutional right to be free from state and/or governmental endangerment, qualified

immunity can not apply to the Defendants.

31. "In deciding whether a right was clearly established, we ask: (1) Was the

law defined with reasonable clarity? (2) Had the Supreme Court or the Second Circuit

affirmed the rule? And (3) Would a reasonable defendant have understood from the

existing law that the conduct was unlawful?" Young v. County of Fulton, 160 F.3d

899,903 (2nd Cir. 1998).

32. The constitutional right at issue in our present case is the duty of a state or

governmental actor not to put a person endanger as a result of misrepresentations. In

Briscoe, 355 F.Supp.2d 30 (D.D.C. 2004), the court acknowledged that the

state/government endangerment theory was a valid constitutional right, however stated

that in 2001, the time at which the basis of the litigation in Briscoe arose, the

state/governmental endangerment theory had yet to be clearly defined by the Court. ]Q,

at 47. However, with its holding in 2004, the Briscoe court clearly established the

endangerment theory as a valid constitutional right.

[1

33. The Second Circuit acknowledged the existence of the state/government

II endangerment theory as a constitutional right in Lombardi v. Whitman, 485 F.3d 73, 81

\ (2nd Cir. 2007). In Lombardi, the Second Circuit found that there is "support for the

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 16 of 17
idea that a substantive due process violation can be made out when a private individual derives a false sense of security from an intentional misrepresentation by an executive official if foreseeable bodily harm directly results and if the official's conduct shocks the conscience." The Second Circuit's decision, which came down in 2007, clearly established the state endangerment theory as a valid constitutional right, as such defendants can not claim that they were unaware of the right. On this basis, the individual Defendants are not entitled to qualitative immunity for their violation of plaintiffs' substantive due process rights to be free from harm as a result of a
I·I misrepresentation from a governmental entity.
CROSS MOTION TO AMEND COMPLAINT 34. Plaintiff seeks leave to amend the complaint. A copy of the proposed Jamended complaint is annexed hereto as Exhibit "A". 35. "The court should freely give leave when justice requires." Fed. R. Civ. P. 15(a)(2). "Leave to amend should only be denied because of undue delay, bad faith, futility, or prejudice to the nonmoving party." Ganthier v. North Shore-Long Island Jewish Healthy System, 298 F.Supp.2d 342, 349 (E.D.N.Y. 2004) citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962). "[T]he decision to grant or deny a motion to amend rests within the sound discretion of the district court." Ganthier, 298 F.Supp.2d at 349, citing Zahra v. Town of Southold, 48 F.3d 674, 685 (2nd Cir. 1995). 36. In the present case, plaintiffs have moved to amend the complaint prior to the opening of discovery. Defendants can not claim that there has been an undue delay in plaintiffs motion to amend. In addition, Defendants can not claim any prejudice, bad lfaith or futility. Plaintiffs seek only to clarify their pleadings to ensure that they comply

Case 1:11-cv-01300-LAP Document 22 Filed 08/09/11 Page 17 of 17

I

lwith the Court's ruling in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The amendments to

the pleadings are related to the same incidents that brought rise to the litigation and do

Inot seek to add additional claims. In addition, the amendments can not be deemed

futile, as Plaintiffs have put forth a valid cause of action of which they can be successful

if the allegations in the Amended Complaint are found to be true.

WHEREFORE, it is respectfully requested that defendant's motion to to dismiss

plaintiff's complaint be denied in its entirety. It is also requested that plaintiffs' cross

motion to amend their complaints be granted.

Dated: New York, New York

I

August 8, 2011

II
!

Case 1:11-cv-01300-LAP Document 22-1 Filed 08/09/11 Page 1 of 27

f

.'c-t,

<

{'i!'

Exhibit "A"

Case 1:11-cv-01300-LAP Document 22-1 Filed 08/09/11 Page 2 of 27

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Index# 11 CV2150 (RJH)

---------------------------------------------------------------------------X

JOHN PACCIONE and MADELINE PACCIONE

AMENDED

Plaintiffs

VERIFIED

COMPLAINT

Against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Defendants
--------------------------------------------------------------------------X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. The occurrences which are the subject of this action took place

in the County of Bronx.

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

through the NYC Department of Corrections ("DOC") was responsible for the

policy, practice, supervision, implementation and conduct of all DOC matters

Case 1:11-cv-01300-LAP Document 22-1 Filed 08/09/11 Page 3 of 27

and was responsible for the appointment, training, supervision, and conduct

of all DOC personnel. In addition, at all relevant times, defendant CITY OF

NEW YORK was responsible for enforcing the rules of the DOC, and for

ensuring that DOC personnel obeyed the Constitution and laws of the United

States and of the State of New York.

4. Defendant BERNARD KERIK was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner BERNARD KERIK is

sued in his individual and official capacity.

5. Defendant GARY M. LANIGAN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner GARY M. LANIGAN is

sued in his individual and official capacity.

6. Defendant WILLIAM J. FRASER was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

2

Case 1:11-cv-01300-LAP Document 22-1 Filed 08/09/11 Page 4 of 27

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

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New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personnel. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). AS AND FOR A FIRST CAUSE OF ACTION
13. That at all times mentioned herein, and from on or about 1990 until present plaintiff JOHN PACCIONE worked as a Plumber at Rikers Island
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Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
14. That from on or about 1990 to present, plaintiff JOHN PACCIONE was exposed to carcinogens and/or toxins at and upon said premises.
15. That the plaintiff JOHN PACCIONE was not diagnosed with brain cancer until on or about January 7, 2010.
16. That at all times mentioned herein, the defendant CITY OF NEW YORK was the owner of premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
17. That at all times mentioned herein, the defendant CITY OF NEW YORK operated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
18. That at all times mentioned herein, the defendant CITY OF NEW YORK maintained premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
19. That at all times mentioned herein, the defendant CITY OF NEW YORK managed premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
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20. That at all times mentioned herein, the defendant CITY OF NEW YORK controlled premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
21. That at all times mentioned herein, the defendant CITY OF NEW YORK supervised premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
22. That at all times mentioned herein, the defendant CITY OF NEW YORK renovated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
23. That at all times mentioned herein, the defendant CITY OF NEW YORK repaired premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
24. That at all times mentioned herein, the defendant CITY OF NEW YORK inspected premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
25. That at all times mentioned herein, the defendant CITY OF NEW YORK hired contractors at premises known as RIKERS ISLAND
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CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
26. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
27. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
28. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
29. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfill.
30. The landfill was comprised of garbage from New York City. 31. The landfill was comprised of various toxins and carcinogens. 32. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein. 33. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair. 34. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
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35. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
36. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
37. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
38. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
39. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
40. That at various and diverse times from on or about 1990 to present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
41. That at various and diverse times from 1990 to present and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
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42. That at various and diverse times from 1990 to present and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
43. It was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
44. It was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
45. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
46. That the plaintiff JOHN PACCIONE, was diagnosed with brain cancer on or about January 7, 2010.
47. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
48. That carcinogens and/or toxins were present at said premises, from the time the plaintiff JOHN PACCIONE was employed there, which was approximately from 1990 to present.
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49. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
50. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
51. That at all times mentioned herein, the defendant, its agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
52. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
53. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
54. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
55. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
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56. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
57. Upon information and belief, during plaintiff's time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
58. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
59. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
60. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
61. That the negligence of the defendants CITY OF NEW YORK, its agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable
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condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps
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to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises.
62. That as a result of the foregoing, the plaintiff JOHN PACCIONE was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
63. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
64. That by reason of the foregoing, plaintiff JOHN PACCIONE, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
SECOND CAUSE OF ACTION: (POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
65. Plaintiff, JOHN PACCIONE, repeats and realleges each and every allegation contained herein, as though the same were set forth at length
66. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C §1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
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67. That at all times mentioned herein, and from on or about 1990 to present plaintiff JOHN PACCIONE worked as a Plumber at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
68. That from on or about 1990 to present, plaintiff JOHN PACCIONE was exposed to carcinogens and/or toxins at and upon said premises.
69. That the plaintiff JOHN PACCIONE was not diagnosed with brain cancer until on or about January 7, 2010.
70. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
71. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises.
72. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island.
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73. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to plaintiff that Riker's Island was a safe and secure work environment.
74. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
75. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
76. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state
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law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S. C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
77. Exposure of plaintiff to toxins and carcinogens deprive the plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
78. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
79. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing, permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
80. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the City of New York and the County of Bronx.
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81. That from approximately 1990 to the present, the plaintiff, JOHN PACCIONE, was lawfully and properly present upon the premises mentioned herein.
82. Commencing approximately 1990 to present, plaintiff JOHN PACCIONE was exposed to toxic, cancerous substances which are present at said premises.
83. That commencing approximately 1990 to present, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
84. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
85. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
86. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair,
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renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
87. As a result of the aforesaid plaintiff JOHN PACCIONE was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of 42 U.S.C. §1983.
88. As a further result of the deprivation of plaintiff JOHN PACCIONE's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States Constitution, he was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
89. From on or about 1990 to present in violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S. C. Section 1983.
90. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
91. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
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92. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
93. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
94. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
95. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
96. That at various and diverse times from on or about 1990 to the present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
97. That at various and diverse times from 1990 and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
98. That at various and diverse times from 1990 and for a period of time prior and subsequent thereto the defendants, their agents, servants
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and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
99. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
100. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
101. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
102. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
103. That carcinogens and/or toxins were present at said premises, from the time the plaintiff JOHN PACCIONE was employed there, which was approximately from 1990 to present.
104. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
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105. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
106. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
107. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
108. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
109. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendants have not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
110. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of his Constitutional
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rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
111. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
112. That commencing on or about 1990 to present, in violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
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113. That the negligence of the defendants their agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations;
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in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff JOHN PACCIONE of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
114. That as a result of the foregoing, the plaintiff JOHN PACCIONE was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
115. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
116. That by reason of the foregoing, plaintiff JOHN PACCIONE, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
AS AND FOR A THIRD CAUSE OF ACTION 117. Plaintiff, MADELINE PACCIONE repeats and realleges each and every allegation contained herein, as though the same were set forth at length.
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118. That at all times herein mentioned, plaintiff, MADELINE PACCIONE, was and still is the wife of the plaintiff, JOHN PACCIONE, and as such is entitled to the services, society, consortium and companionship of her spouse.
55. That as a result of the foregoing on the part of the defendant, and the resulting injuries to the plaintiff, JOHN PACCIONE, this plaintiff has been required to expend various sums of money for the medical care, consultation, advice, and treatment of the plaintiff, and has suffered other indemnifiable economic losses and has been deprived of the services, society, consortium and companionship of the plaintiff.
119. That by reason of the foregoing, plaintiff, MADELINE PACCIONE, has been damaged in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein.
WHEREFORE, plaintiffs demand judgment against the defendants in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of· this action, and with interest from the date of this occurrence. Dated: New York, New York
February 18, 2011 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff
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Case 1:11-cv-01300-LAP Document 22-1 Filed 08/09/11 Page 27 of 27 BY:
c=-H:-cR=ci:-=S=T-::cO:::-P:-:-H=-E=-R---::J---:o, =-o=-N:-:-A:-::0 I0
233 Broadway, Suite 900 New York, NY 10279 212 393-1000
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Case 1:11-cv-01300-LAP Document 22-2 Filed 08/09/11 Page 1 of 18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Index# 11 CV 2697 (RJH)

---------------------------------------------------------------------------X
DAMARIE AQUINO

AMENDED

Plaintiffs

VERIFIED

COMPLAINT

Against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Plaintiff demands a Jury

Defendants
--------------------------------------------------------------------------X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. Jurisdiction of this Court is founded upon 28 U.S.C. Subsections

1331, 1343(3) and (4) and 42 U.S.C. Section 1983 and 1988. The matter in

controversy exceeds the sum of $75,000.00, exclusive of interest and costs.

Pendant jurisdiction is invoked pursuant to 28 U.S. C. Subsection 1367(a

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

Case 1:11-cv-01300-LAP Document 22-2 Filed 08/09/11 Page 2 of 18
through the NYC Department of Corrections ("DOC") was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision, and conduct of all DOC personnel. In addition, at all relevant times, defendant CITY OF NEW YORK was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
4. Defendant BERNARD KERIK was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect to the CITY OF NEW YORK Agency under his control, including the NYC DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner BERNARD KERIK is sued in his individual and official capacity.
5. Defendant GARY M. LANIGAN was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect to the CITY OF NEW YORK Agency under his control, including the NYC DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner GARY M. LANIGAN is sued in his individual and official capacity.
6. Defendant WILLIAM J. FRASER was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect
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to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

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CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personneL In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). AS AND FOR A FIRST CAUSE OF ACTION (POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
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13. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C §1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
14. That at all times mentioned herein, and from on or about 2005 to present plaintiff DAMARIE AQUINO worked as a Corrections Officer at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
15. That from on or about 2005 to present, plaintiff DAMARIE AQUINO was exposed to carcinogens and/or toxins at and upon said premises.
16. That the plaintiff DAMARIE AQUINO was not diagnosed with breast cancer until on or about February, 2010.
17. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
18. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
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19. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
20. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
21. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfill.
22. The landfill was comprised of garbage from New York City. 23. The landfill was comprised of various toxins and carcinogens. 24. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises. 25. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island. 26. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to plaintiff that Riker's Island was a safe and secure work environment.
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27. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
28. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
29. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
30. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
31. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
32. Upon information and belief, during plaintiff's time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
33. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
34. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS
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NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
35. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
36. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
37. Exposure of plaintiff to toxins and carcinogens deprive the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness
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and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
38. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
39. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing, permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
40. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the CITY OF NEW YORK and the County of Bronx.
41. That from approximately 2005 to present, the plaintiff, DAMARIE AQUINO, was lawfully and properly present upon the premises mentioned herein.
42. Commencing approximately 2005 to present, plaintiff DAMARIE AQUINO was exposed to toxic, cancerous substances which are present at said premises.
43. That commencing approximately 2005 to present, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and
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permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
44. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
45. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
46. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
47. As a result of the aforesaid, plaintiff DAMARIE AQUINO was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of 42 U.S.C. §1983.
48. As a further result of the deprivation of plaintiff DAMARIE AQUINO's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States
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Constitution, she was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
49. From on or about 2005 to present in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S.C. Section 1983.
50. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
51. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
52. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
53. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
54. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
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55. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
56. That at various and diverse times from on or about 2005 to the present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
57. That at various and diverse times from on or about 2005 to the present and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
58. That at various and diverse times from on or about 2005 to the present and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
59. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
60. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
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61. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
62. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
63. That carcinogens and/or toxins were present at said premises, from the time the plaintiff DAMARIE AQUINO was employed there, which was approximately from 2005 to present
64. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
65. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
66. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
67. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York
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City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
68. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
69. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendants have not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
70. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
71. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be
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permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
72. That commencing on or about 2005 to present, in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
73. That the negligence of the defendants their agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept,
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incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff DAMARIE AQUINO of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
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74. That as a result of the foregoing, the plaintiff DAMARIE AQUINO was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
75. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
76. That by reason of the foregoing, plaintiff DAMARIE AQUINO, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
WHEREFORE, plaintiffs demand judgment against the defendants in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the date of this occurrence.
Additionally, plaintiff demands in respect of all Causes of Action, the additional total sum of $5,000,000.00 in punitive damages and attorney fees pursuant to 42 U.S.C.§1988. Dated: New York, New York
April 14, 2011 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff
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Case 1:11-cv-01300-LAP Document 22-2 Filed 08/09/11 Page 18 of 18 BY: C:=cH:-:cR::clc=S=T-=-o=p:-::H=ER=--::J---:.o=-o=-:N:-:-A:-::0 I0 233 Broadway, Suite 900 New York, NY 10279 212 393-1000
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------------x ROBERT BARLEY
Plaintiffs
Against

11 CV 1300 (RJH)
AMENDED VERIFIED COMPLAINT

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Defendants
--------------------------------------------------------------------------X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. The occurrences which are the subject of this action took place

in the County of Bronx.

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

through the NYC Department of Corrections ("DOC") was responsible for the

policy, practice, supervision, implementation and conduct of all DOC matters

Case 1:11-cv-01300-LAP Document 22-3 Filed 08/09/11 Page 2 of 20

and was responsible for the appointment, training, supervision, and conduct

of all DOC personnel. In addition, at all relevant times, defendant CITY OF

NEW YORK was responsible for enforcing the rules of the DOC, and for

ensuring that DOC personnel obeyed the Constitution and laws of the United

States and of the State of New York.

4. Defendant BERNARD KERIK was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner BERNARD KERIK is

sued in his individual and official capacity.

5. Defendant GARY M. LANIGAN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner GARY M. LANIGAN is

sued in his individual and official capacity.

6. Defendant WILLIAM J. FRASER was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

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CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

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New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personnel. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). FIRST CAUSE OF ACTION:
(POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS!
13. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C
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§1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
14. That at all times mentioned herein, and from on or about October, 1993 until September, 2007 plaintiff ROBERT BARLEY worked as a Cook at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
15. That from on or about October, 1993 until September, 2007, plaintiff ROBERT BARLEY was exposed to carcinogens and/or toxins at and upon said premises.
16. That the plaintiff ROBERT BARLEY was not diagnosed with thyroid cancer until on or about March 1, 2008.
17. That at all times mentioned herein, the defendant CITY OF NEW YORK was the owner of premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
18. That at all times mentioned herein, the defendant CITY OF NEW YORK operated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
19. That at all times mentioned herein, the defendant CITY OF NEW YORK maintained premises known as RIKERS ISLAND
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CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
20. That at all times mentioned herein, the defendant CITY OF NEW YORK managed premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
21. That at all times mentioned herein, the defendant CITY OF NEW YORK controlled premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
22. That at all times mentioned herein, the defendant CITY OF NEW YORK supervised premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
23. That at all times mentioned herein, the defendant CITY OF NEW YORK renovated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
24. That at all times mentioned herein, the defendant CITY OF NEW YORK repaired premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
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25. That at all times mentioned herein, the defendant CITY OF NEW YORK inspected premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
26. That at all times mentioned herein, the defendant CITY OF NEW YORK hired contractors at premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
27. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
28. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
29. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
30. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfill.
31. The landfill was comprised of garbage from New York City. 32. The landfill was comprised of various toxins and carcinogens. 33. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
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34. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises.
35. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island.
36. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to class plaintiffs that Riker's Island was a safe and secure work environment.
37. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
38. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
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39. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
40. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
41. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
42. Upon information and belief, during plaintiffs time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
43. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
44. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
45. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS
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NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
46. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
47. Exposure of plaintiff to toxins and carcinogens deprive the plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
48. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
49. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing,
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permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
50. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the City of New York and the County of Bronx.
51. That from approximately October, 1993 to September, 2007, the plaintiff, ROBERT BARLEY, was lawfully and properly present upon the premises mentioned herein.
52. Commencing approximately October, 1993 to September, 2007, plaintiff ROBERT BARLEY was exposed to toxic, cancerous substances which are present at said premises.
53. That commencing approximately October, 1993 to September, 2007, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
54. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of
11

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the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
55. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
56. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
57. As a result of the aforesaid plaintiff ROBERT BARLEY was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of 42 U.S.C. §1983.
58. As a further result of the deprivation of plaintiff ROBERT BARLEY's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States Constitution, he was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
59. From on or about October, 1993 to 2007 in violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed
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and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S. C. Section 1983.
60. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
61. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
62. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
63. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
64. Throughout the course of plaintiff's employment, Defendants conducted testing of the soil, water and air that indicated that toxins and/or carcinogens were present at Rikers Island.
65. Defendants represented to plaintiff that there were not any toxins and/or carcinogens present at Rikers Island.
66. Defendants knowingly provided false information to plaintiff as to the presence of toxin and/or carcinogens at Rikers Island.
67. As a result of the false information that Defendants provided to plaintiff, plaintiff has been harmed.
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68. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
69. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
70. That at various and diverse times from on or about 1993 to the present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
71. That at various and diverse times from 1993 and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
72. That at various and diverse times from 1993 and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
73. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
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74. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
75. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
76. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
77. That carcinogens and/or toxins were present at said premises, from the time the plaintiff ROBERT BARLEY was employed there, which was approximately from October, 1993 until September, 2007.
78. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
79. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
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80. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
81. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
82. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
83. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendant CITY OF NEW YORK has not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
84. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
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85. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
86. That commencing on or about October, 1993 to September, 2007, in violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
87. That the negligence of the defendants CITY OF NEW YORK, its agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management,
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maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in
18

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knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff ROBERT BARLEY of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
88. That as a result of the foregoing, the plaintiff ROBERT BARLEY was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
89. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
90. That by reason of the foregoing, plaintiff ROBERT BARLEY, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
WHEREFORE, plaintiffs demand judgment against the defendants on the defendant in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the date of this occurrence. Dated: New York, New York
August 5, 2011
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Case 1:11-cv-01300-LAP Document 22-3 Filed 08/09/11 Page 20 of 20 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff BY:c"=-c-:-H=-R:-::IS=T-=-o-=-p-:-:H=E=R-:J-.o=-o~NA.,....,D 10 233 Broadway, Suite 900 New York, NY 10279 212 393-1000
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Case 1:11-cv-01300-LAP Document 22-4 Filed 08/09/11 Page 1 of 18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Index# 11 CV 327.7 (RJH)

---------------------------------------------------------------------------X

MARVA HARRISON

AMENDED

Plaintiffs

VERIFIED

COMPLAINT

Against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Plaintiff demands a Jury

Defendants --------------------------------------------------------------------------X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. Jurisdiction of this Court is founded upon 28 U.S.C. Subsections

1331, 1343(3) and (4) and 42 U.S.C. Section 1983 and 1988. The matter in

controversy exceeds the sum of $75,000.00, exclusive of interest and costs.

Pendant jurisdiction is invoked pursuant to 28 U.S.C. Subsection 1367(a

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

Case 1:11-cv-01300-LAP Document 22-4 Filed 08/09/11 Page 2 of 18
through the NYC Department of Corrections ("DOC") was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision, and conduct of all DOC personneL In addition, at all relevant times, defendant CITY OF NEW YORK was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
4. Defendant BERNARD KERIK was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect to the CITY OF NEW YORK Agency under his control, including the NYC DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner BERNARD KERIK is sued in his individual and official capacity.
5. Defendant GARY M. LANIGAN was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect to the CITY OF NEW YORK Agency under his control, including the NYC DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner GARY M. LANIGAN is sued in his individual and official capacity.
6. Defendant WILLIAM J. FRASER was the Commissioner of the NYC Department of Corrections and as such, was a policy maker with respect
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to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

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CORRECTIONS principal place of business is 60 Hudson Street, County of New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personnel. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). AS AND FOR A FIRST CAUSE OF ACTION (POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
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13. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C §1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
14. That at all times mentioned herein, and from on or about 1999 to present plaintiff MARVA HARRISON worked as a Public Health Education for the NYC Department of Health at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
15. That from on or about 1999 to present, plaintiff MARVA HARRISON was exposed to carcinogens and/or toxins at and upon said premises.
16. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
17. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
18. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
19. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfill.
20. The landfill was comprised of garbage from New York City. 21. The landfill was comprised of various toxins and carcinogens.
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22. That the plaintiff MARVA HARRISON was not diagnosed with breast cancer until on or about June, 2008.
23. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
24. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises.
25. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island.
26. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to plaintiff that Riker's Island was a safe and secure work environment.
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27. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
28. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
29. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
30. Upon information and belief, during plaintiffs time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
31. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
32. Upon information and belief, during plaintiff's time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
33. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
34. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS
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NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
35. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
36. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
37. Exposure of plaintiff to toxins and carcinogens deprives the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness
8

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and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
38. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
39. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing, permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
40. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the CITY OF NEW YORK and the County of Bronx.
41. That from approximately 1999 to present, the plaintiff, MARVA HARRISON, was lawfully and properly present upon the premises mentioned herein.
42. Commencing approximately 1999 to present, plaintiff MARVA HARRISON was exposed to toxic, cancerous substances which are present at said premises.
43. That commencing approximately 1999 to present, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and
9

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permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
44. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
45. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
46. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
47. As a result of the aforesaid, plaintiff MARVA HARRISON was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of 42 U.S.C. §1983.
48. As a further result of the deprivation of plaintiff MARVA HARRISON's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States
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Constitution, she was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
49. From on or about 1999 to present in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S.C. Section 1983.
50. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
51. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
52. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
53. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
54. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
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55. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
56. That at various and diverse times from on or about 1999 to the present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
57. That at various and diverse times from on or about 1999 to the present and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
58. That at various and diverse times from on or about 1999 to the present and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
59. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
60. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
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61. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
62. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
63. That carcinogens and/or toxins were present at said premises, from the time the plaintiff MARVA HARRISON was employed there, which was approximately from 1999 to present.
64. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
65. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
66. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
67. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York
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City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
68. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
69. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendants have not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
70. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
71. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be
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permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
72. That commencing on or about 1999 to present, in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
73. That the negligence of the defendants their agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept,
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incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff MARVA HARRISON of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
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74. That as a result of the foregoing, the plaintiff MARVA HARRISON was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
75. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
76. That by reason of the foregoing, plaintiff MARVA HARRISON, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
WHEREFORE, plaintiffs demand judgment against the defendants in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the date of this occurrence.
Additionally, plaintiff demands in respect of all Causes of Action, the additional total sum of $5,000,000.00 in punitive damages and attorney fees pursuant to 42 U.S.C.§1988. Dated: New York, New York
May 12, 2011 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff
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Case 1:11-cv-01300-LAP Document 22-4 Filed 08/09/11 Page 18 of 18 BY: ·c=-,..,.H=R=Is=T""O"'P-:-:H=E=R--=J-.o=-0-::-:-:-NA"O"""::D I0 233 Broadway, Suite 900 New York, NY 10279 212 393-1000
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Index# 11 CV 2149 (RJH)

---------------------------------------------------------------------------X MARIA NEE

AMENDED

Plaintiffs

VERIFIED

COMPLAINT

Against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Defendants ---------------------------------------------------------------------e----X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. The occurrences which are the subject of this action took place

in the County of Bronx.

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

through the NYC Department of Corrections ("DOC") was responsible for the

policy, practice, supervision, implementation and conduct of all DOC matters

Case 1:11-cv-01300-LAP Document 22-5 Filed 08/09/11 Page 2 of 25

and was responsible for the appointment, training, supervision, and conduct

of all DOC personnel. In addition, at all relevant times, defendant CITY OF

NEW YORK was responsible for enforcing the rules of the DOC, and for

ensuring that DOC personnel obeyed the Constitution and laws of the United

States and of the State of New York.

4. Defendant BERNARD KERIK was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner BERNARD KERIK is

sued in his individual and official capacity.

5. Defendant GARY M. LANIGAN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner GARY M. LANIGAN is

sued in his individual and official capacity.

6. Defendant WILLIAM J. FRASER was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

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CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

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New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personnel. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). AS AND FOR A FIRST CAUSE OF ACTION
13. That at all times mentioned herein, and from on or about 1991 until 2008 plaintiff MARIA NEE worked as a Corrections Officer at Rikers
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Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
14. That from on or about 1991 to 2008, plaintiff MARIA NEE was exposed to carcinogens and/or toxins at and upon said premises.
15. That the plaintiff MARIA NEE was not diagnosed with cancer until on or about February 22, 2010.
16. That at all times mentioned herein, the defendant CITY OF NEW YORK was the owner of premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
17. That at all times mentioned herein, the defendant CITY OF NEW YORK operated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
18. That at all times mentioned herein, the defendant CITY OF NEW YORK maintained premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
19. That at all times mentioned herein, the defendant CITY OF NEW YORK managed premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
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20. That at all times mentioned herein, the defendant CITY OF NEW YORK controlled premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
21. That at all times mentioned herein, the defendant CITY OF NEW YORK supervised premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
22. That at all times mentioned herein, the defendant CITY OF NEW YORK renovated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
23. That at all times mentioned herein, the defendant CITY OF NEW YORK repaired premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
24. That at all times mentioned herein, the defendant CITY OF NEW YORK inspected premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
25. That at all times mentioned herein, the defendant CITY OF NEW YORK hired contractors at premises known as RIKERS ISLAND
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CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
26. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
27. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
28. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
29. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfill.
30. The landfill was comprised of garbage from New York City. 31. The landfill was comprised of various toxins and carcinogens. 32. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein. 33. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair. 34. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
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35. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
36. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
37. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
38. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
39. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
40. That at various and diverse times from on or about 1990 to present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
41. That at various and diverse times from 1991 to present and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
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42. That at various and diverse times from 1991 to present and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
43. It was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
44. It was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
45. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
46. That the plaintiff MARIA NEE, was diagnosed with breast cancer on or about February 22, 2010.
47. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
48. That carcinogens and/or toxins were present at said premises, from the time the plaintiff MARIA NEE was employed there, which was approximately from 1991 to 2008.
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49. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
50. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
51. That at all times mentioned herein, the defendant, its agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
52. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
53. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
54. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
55. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
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56. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
57. Upon information and belief, during plaintiff's time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
58. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
59. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
60. That at all times mentioned herein, the defendant, its agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
61. That the negligence of the defendant CITY OF NEW YORK, its agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable
11

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condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps
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to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises.
62. That as a result of the foregoing, the plaintiff MARIA NEE was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of her body and mind, and to suffer great pain and anguish in her body and mind.
63. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
64. That by reason of the foregoing, plaintiff MARIA NEE, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
SECOND CAUSE OF ACTION: (POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
65. Plaintiff, MARIA NEE, repeats and realleges each and every allegation contained herein, as though the same were set forth at length
66. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C §1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
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67. That at all times mentioned herein, and from on or about 1991 to 2008 plaintiff MARIA NEE worked as a Corrections Officer at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
68. That from on or about 1991 to 2008, plaintiff MARIA NEE was exposed to carcinogens and/or toxins at and upon said premises.
69. That the plaintiff MARIA NEE was not diagnosed with breast cancer until on or about February 22, 2010.
70. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
71. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises.
72. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island.
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73. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to plaintiff that Riker's Island was a safe and secure work environment.
74. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
75. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
76. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state
15

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law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S. C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
77. Exposure of plaintiff to toxins and carcinogens deprive the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
78. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
79. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing, permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
80. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of New York, the City of New York and the County of Bronx.
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81. That from approximately 1991 to 2008, the plaintiff, MARIA NEE, was lawfully and properly present upon the premises mentioned herein.
82. Commencing approximately 1991 to 2008, plaintiff MARIA NEE was exposed to toxic, cancerous substances which are present at said premises.
83. That commencing approximately 1991 to 2008, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
84. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY. Upon information and belief, defendants participated in the enforcement of the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
85. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
86. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
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87. As a result of the aforesaid plaintiff MARIA NEE was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of42 U.S.C. §1983.
88. As a further result of the deprivation of plaintiff MARIA NEE's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States Constitution, she was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
89. From on or about 1991 to 2008 in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S. C. Section 1983.
90. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
91. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
92. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and
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other applicable sections, regulations and statutes under New York State, local and federal law.
93. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
94. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
95. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
96. That at various and diverse times from on or about 1991 to the present and for a period of time prior and subsequent thereto, there existed a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
97. That at various and diverse times from 1991 and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
98. That at various and diverse times from 1991 and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
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99. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
100. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
101. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
102. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
103. That carcinogens and/or toxins were present at said premises, from the time the plaintiff MARIA NEE was employed there, which was approximately from 1991 to present.
104. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
105. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary
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precautions and remedies to render the said premises habitable and safe for occupancy.
106. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
107. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
108. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
109. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendants have not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
110. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of her Constitutional rights to life, liberty and the pursuit of happiness and substantive and
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procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
111. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
112. That commencing on or about 1991 to present, in violation of the rights, privileges and immunities guaranteed to her under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
113. That the negligence of the defendants their agents, servants and/or employees consisted of the following: in the negligent, careless and
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reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe; in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper,
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incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff MARIA NEE of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
114. That as a result of the foregoing, the plaintiff MARIA NEE was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
115. That this action falls within one or more of the exceptions set forth in CPLR Article 16.
116. That by reason of the foregoing, plaintiff MARIA NEE, has sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
WHEREFORE, plaintiffs demand judgment against the defendants in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the date of this occurrence.
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Dated: New York, New York February 7, 2011

Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff

BY:·~~--~------~CHRISTOPHER J. DONADIO 233 Broadway, Suite 900 NewYork, NY 10279 212 393-1000

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Index# 11 CV 1301 (RJH)

---------------------------------------------------------------------------X RALPH RAJA

AMENDED

Plaintiffs

VERIFIED

COMPLAINT

Against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER,MARTIN F. HORN, JOHN J. ANTONELLI, and DORA B. SCHRIRO, CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Defendants --------------------------------------------------------------------------X

Plaintiffs, complaining of the Defendants through their attorneys,

BURNS & HARRIS, ESQS., alleges upon information and belief:

JURISDICTION

1. The occurrences which are the subject of this action took place

in the County of Bronx.

THE PARTIES

2. Defendant CITY OF NEW YORK is a municipal corporation

existing under and by virtue of the laws of the State of New York.

3. Defendant CITY OF NEW YORK is a duly constituted municipal

corporation organized and existing under the laws of the State of New York.

At all times relevant hereto, the defendant CITY OF NEW YORK, action

through the NYC Department of Corrections ("DOC") was responsible for the

policy, practice, supervision, implementation and conduct of all DOC matters

Case 1:11-cv-01300-LAP Document 22-6 Filed 08/09/11 Page 2 of 19

and was responsible for the appointment, training, supervision, and conduct

of all DOC personnel. In addition, at all relevant times, defendant CITY OF

NEW YORK was responsible for enforcing the rules of the DOC, and for

ensuring that DOC personnel obeyed the Constitution and laws of the United

States and of the State of New York.

4. Defendant BERNARD KERIK was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner BERNARD KERIK is

sued in his individual and official capacity.

5. Defendant GARY M. LANIGAN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner GARY M. LANIGAN is

sued in his individual and official capacity.

6. Defendant WILLIAM J. FRASER was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

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CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner WILLIAM J. FRASER

is sued in his individual and official capacity.

7. Defendant MARTIN F. HORN was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner MARTIN F. HORN is

sued in his individual and official capacity.

8. Defendant JOHN J. ANTONELLI was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under his control, including the NYC

DEPARTMENT OF CORRECTIONS.

The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

New York, City and State of New York. Commissioner JOHN J. ANTONELLI

is sued in his individual and official capacity.

9. Defendant DORA B. SCHRIRO was the Commissioner of the

NYC Department of Corrections and as such, was a policy maker with respect

to the CITY OF NEW YORK Agency under her control, including the NYC

DEPARTMENT OF CORRECTIONS. The DEPARTMENT OF

CORRECTIONS principal place of business is 60 Hudson Street, County of

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New York, City and State of New York. Commissioner DORA B. SCHRIRO is sued in her individual and official capacity.
10. Defendant NEW YORK CITY DEPARTMENT OF CORRECTIONS is an agency of THE CITY OF NEW YORK, responsible for overseeing, organizing, administering and running the City's detention facilities, including RIKERS ISLAND, in which among other people, Corrections Officers are employed. At all times relevant hereto, defendant DOC, together with THE CITY OF NEW YORK, was responsible for the policy, practice, supervision, implementation and conduct of all DOC matters and was responsible for the appointment, training, supervision and conduct of all DOC personnel. In addition, at all relevant times, defendant DOC, together with THE CITY OF NEW YORK, was responsible for enforcing the rules of the DOC, and for ensuring that DOC personnel obeyed the Constitution and laws of the United States and of the State of New York.
11. At all times relevant hereto, Defendant CITY OF NEW YORK operated, maintained, managed, supervised and controlled RIKERS ISLAND LANDFILL and RIKERS ISLAND CORRECTIONAL FACILITY as part of and in conjunction with its municipal functions.
12. That plaintiff claims applicability of CPLR §214-(c)(4). FIRST CAUSE OF ACTION:
(POLICY OF NON-FEASANCE IN THE PROTECTION OF PLAINTIFF'S CIVIL RIGHTS)
13. This is a Civil Rights action brought pursuant to the United States Constitution, as amended, and the Civil Rights Act of 1871, 42 U.S.C
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§1983 and the New York State Constitution and seeks redress for defendants' deprivation, under color of State law, of plaintiff's rights, privileges, and immunities secured by the Constitution and laws of the United States and by the new York State Constitution.
14. That at all times mentioned herein, and from on or about 1989 to 2003 plaintiff RALPH RAIA worked as a Corrections Officer at Rikers Island Correctional Facility, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
15. That from on or about 1989 to 2003, plaintiff RALPH RAIA was exposed to carcinogens and/or toxins at and upon said premises.
16. That the plaintiff RALPH RAIA was not diagnosed with renal cancer until on or about February 19, 2008.
17. That at all times mentioned herein, the defendant CITY OF NEW YORK was the owner of premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
18. That at all times mentioned herein, the defendant CITY OF NEW YORK operated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
19. That at all times mentioned herein, the defendant CITY OF NEW YORK maintained premises known as RIKERS ISLAND
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CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
20. That at all times mentioned herein, the defendant CITY OF NEW YORK managed premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
21. That at all times mentioned herein, the defendant CITY OF NEW YORK controlled premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
22. That at all times mentioned herein, the defendant CITY OF NEW YORK supervised premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
23. That at all times mentioned herein, the defendant CITY OF NEW YORK renovated premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
24. That at all times mentioned herein, the defendant CITY OF NEW YORK repaired premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
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25. That at all times mentioned herein, the defendant CITY OF NEW YORK inspected premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
26. That at all times mentioned herein, the defendant CITY OF NEW YORK hired contractors at premises known as RIKERS ISLAND CORRECTIONAL FACILITY, located at 10-10 Hazen Street, County of Bronx, City and State of New York.
27. RIKERS ISLAND CORRECTIONAL FACILITY opened in 1932 as a prison on Rikers Island.
28. At the time of the opening of the Prison in 1932, Rikers Island was approximately 90 acres in size.
29. After the opening of the prison, the City of New York increased the size of Rikers Island to approximately 415 acres.
30. The land of Rikers Island was expanded from 90 acres to 415 acres through the creation of a landfilL
31. The landfill was comprised of garbage from New York City. 32. The landfill was comprised of various toxins and carcinogens. 33. At all times mentioned herein, defendants have instituted and are continuing to enforce a policy, practice and custom to cause, permit, allow and require persons legally upon said premises to be exposed to toxic, cancerous substances which are present at Rikers Island, 10-10 Hazen Street, Bronx, NY.
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34. Defendants had a policy, practice and custom of causing, permitting, allowing and requiring plaintiff to be exposed to toxic, carcinogenic substances while legally upon said premises.
35. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of concealing the known existence of cancer causing toxins present at Riker's Island.
36. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of misrepresenting to class plaintiffs that Riker's Island was a safe and secure work environment.
37. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was told by his supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island.
38. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that it was safe to work at Riker's Island.
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39. Upon information and belief, during plaintiff's time as an employee at Riker's Island he was provided internal memorandum indicating that there were no carcinogens present on Rikers Island.
40. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants were aware that cancer causing toxins were present at Rikers Island.
41. Upon information and belief, during plaintiff's time as an employee at Rikers Island, Defendants performed testing of the soil, air and water.
42. Upon information and belief, during plaintiff's time as an employee at Riker's Island, Defendants performed testing of the soil, air and water that indicated that cancer causing toxins were present on Rikers Island.
43. At the present time, plaintiff is aware of approximately 80 retired and current employees of Riker's Island have been diagnosed with cancer.
44. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of depriving life, liberty and the pursuit of happiness to those present on Riker's Island.
45. That the deprivation of plaintiff's constitutional rights was the result of the CITY OF NEW YORK, NYC DEPARTMENT OF CORRECTIONS AND COMMISSIONERS OF THE NYC DEPARTMENT OF CORRECTIONS
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NAMED HEREIN AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE'S custom and/or policy of violating the due process rights of those present on Riker's Island.
46. All defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment. Said acts by said defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. §1983, and by the Fourth, Fifth, and Fourteenth amendments to the United States Constitution.
47. Exposure of plaintiff to toxins and carcinogens deprive the plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
48. At all times relevant hereto, defendant CITY OF NEW YORK caused, allowed and permitted persons legally upon said premises to be exposed to toxic, cancerous substances which are present at said premises.
49. At all times relevant hereto, defendant CITY OF NEW YORK instituted and continues to enforce a policy, practice and custom causing,
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permitting, allowing and requiring plaintiff to be exposed to toxic, cancerous substances which are present at the said premises.
50. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and/or employees, and each
I of them, not as individuals, but under the color and pretense of the statutes,
ordinances, regulations, customs and usages of the State of New York, the City of New York and the County of Bronx.
51. That from approximately 1989 to 2003, the plaintiff, RALPH RAJA, was lawfully and properly present upon the premises mentioned herein.
52. Commencing approximately 1989 to 2003, plaintiff RALPH RAJA was exposed to toxic, cancerous substances which are present at said premises.
53. That commencing approximately 1989 to 2003, and prior and subsequent thereto, the CITY OF NEW YORK, in violation of 42 U.S.C.§1983 caused the plaintiff to be injured and damaged in causing, allowing and permitting plaintiff to be exposed to toxic, cancerous substances which are present at the premises mentioned.
54. The CITY OF NEW YORK, its agents, servants and/or employees caused, permitted, allowed and required plaintiff to be exposed to toxic, cancerous substances which are present at Riker's Island, Bronx, NY.
I. Upon information and belief, defendants participated in the enforcement of
I
I
I
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the policy and/or knowingly or recklessly failed to prevent enforcement of the plainly unconstitutional policy.
55. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate supervise and inspect the said premises herein.
56. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to operate, maintain, manage, control, repair, renovate, supervise and inspect the said premises in a reasonably safe and suitable condition and repair.
57. As a result of the aforesaid plaintiff RALPH RAIA was exposed to toxic, cancerous substances which are present at the premises mentioned and thereby deprived of his rights, liberties and freedoms under color of State Law in violation of 42 U.S.C. §1983.
58. As a further result of the deprivation of plaintiff RALPH RAIA's right to be free from the deprivation of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendment to the United States Constitution, he was caused to suffer injury and damage both mentally and physically, severe nervous shock and emotional distress and illness.
59. From on or about 1989 to 2003 m violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution and under color of State law, the defendant CITY OF NEW YORK caused, permitted, allowed
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and required plaintiff to be exposed to toxic cancerous substances which are present at said premises, in violation of 42 U.S.C. Section 1983.
60. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
61. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to warn persons of the hazardous and dangerous conditions existing at said premises.
62. That at all times mentioned herein, the defendant CITY OF NEW YORK had a duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
63. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises.
64. That at all times mentioned herein, toxins and/or carcinogens were present upon said premises and were known or should have been known to be present upon said premises.
65. That at all times mentioned herein, said carcinogens and/or toxins were caused, permitted and allowed to be and remain upon said premises.
66. That at various and diverse times from on or about 1989 to the present and for a period of time prior and subsequent thereto, there existed a
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dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins, upon said the premises.
67. That at various and diverse times from 1989 and for a period of time prior and subsequent thereto, the defendants maintained a dangerous, defective and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
68. That at various and diverse times from 1989 and for a period of time prior and subsequent thereto the defendants, their agents, servants and/or employees created a dangerous, hazardous and unsafe condition, including the presence of carcinogens and/or toxins upon said premises.
69. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe and proper condition and free of dangerous, hazardous, and unsafe conditions, including the presence of carcinogens and/or toxins upon said premises.
70. At all times mentioned herein, it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the general public.
71. That at all times mentioned herein, such culpable conduct was a proximate cause of the plaintiff's serious injuries.
72. That at all times relevant hereto, it was the duty of the defendants their servants, agents, and/or employees to conduct and supervise the maintenance, renovation, inspection, and repair operations at
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said premises in a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
73. That carcinogens and/or toxins were present at said premises, from the time the plaintiff RALPH RAIA was employed there, which was approximately from 1989 to 2003.
74. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to operate, maintain, manage, supervise and control the aforesaid premises in a reasonable and safe condition.
75. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to take the necessary precautions and remedies to render the said premises habitable and safe for occupancy.
76. That at all times mentioned herein, the defendants, their agents, servants and/or employees failed to warn persons of the hazardous and dangerous conditions existing at said premises.
77. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to comply with the New York City Health Code and other applicable sections, regulations and statutes under New York State, local and federal law.
78. That at all times mentioned herein, the defendants, their agents, servants and/or employees breached their duty to conduct and supervise the maintenance, renovation, inspection and repair operations at said premises in
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a lawful fashion to prevent the presence of carcinogens and/or toxins at said premises.
79. Although defendants knew or should have known of the fact that toxic cancerous substances were present at the said premises, the defendant CITY OF NEW YORK has not taken any steps or made any efforts to halt this course of conduct, to make redress to the plaintiff or other citizens injured thereby.
80. The unlawful and illegal conduct of the defendants, their agents, servants and/or employees to cause, allow and permit the exposure of plaintiff to toxins and carcinogens deprived the plaintiff of his Constitutional rights to life, liberty and the pursuit of happiness and substantive and procedural due process under the Fourth, Fifth and Fourteenth Amendment to the United States Constitution.
81. That by reason of the foregoing, this plaintiff was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, has suffered and continues to suffer serious and extreme mental and emotional anguish, distress and psychological damages and difficulties, some of which injuries are permanent in nature and duration, and plaintiffs will be permanently caused to suffer pain, inconvenience and other effects of such injuries; plaintiffs incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and plaintiffs have suffered and in the future will necessarily suffer additional loss
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of time and earnings from employment; and plaintiffs will be unable to pursue the usual duties with the same degree of efficiency as prior to this occurrence, all to plaintiffs' great damage.
82. That commencing on or about 1989 to 2003, in violation of the rights, privileges and immunities guaranteed to him under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the color of State law, the defendants acted individually and in concert causing the plaintiff to have been injured and damaged in an amount exceeding the jurisdictional limit of this Court, to be determined upon the trial of this action.
83. That the negligence of the defendants CITY OF NEW YORK, its agents, servants and/or employees consisted of the following: in the negligent, careless and reckless ownership, operation, management, maintenance and control of the aforesaid premises in that they knowingly, and for a long and unreasonable length of time, caused and allowed the aforesaid premises to be maintained in unsafe, improper and unsuitable condition so as to cause carcinogens and/or toxins and harmful substances to be, become and remain at said premises; in failing to provide plaintiff herein with a safe area in which to work; in failing to give warning to the plaintiff of the unlawful, dangerous, hazardous, unsafe and poisonous condition thereat; in hiring inept, incompetent, inadequate, unskilled and insufficient contractors; in permitting, causing and/or allowing a dangerous and hazardous condition to be, remain and exist upon the premises; in causing, allowing and permitting the premises to be, become and remain uninhabitable and unsafe;
17

Case 1:11-cv-01300-LAP Document 22-6 Filed 08/09/11 Page 18 of 19
in causing, allowing and permitting said carcinogens and/or toxins to be and remain upon said premises when it was known or should have been known that they could cause harm to those persons on said premises; in failing to inspect, timely inspect and/or properly inspect the aforesaid premises; in failing to repair, timely repair and/or properly repair and maintain the aforesaid premises although the defendants had notice or should have had notice of the unsafe conditions complained of herein; in negligently and carelessly repairing and maintaining the premises in such a manner and under such control so as to cause the occurrence complained of herein; in violating statutory obligations; in violating the Health Code and other applicable sections, regulations and statutes under New York State, local and federal law; in providing improper, incompetent and insufficient supervision; in knowingly permitting said carcinogens and/or toxins to remain for an unreasonable period of time; in failing to take the proper and necessary steps to prevent the happening of the occurrences as herein set forth; and in otherwise being negligent an careless in the premises; in depriving plaintiff RALPH RAJA of rights guaranteed to him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
84. That as a result of the foregoing, the plaintiff RALPH RAIA was caused to sustain severe and permanent personal injuries to become sick, sore, lame and disabled, sustained injuries to various portions of his body and mind, and to suffer great pain and anguish in his body and mind.
18

Case 1:11-cv-01300-LAP Document 22-6 Filed 08/09/11 Page 19 of 19
85. That this action falls within one or more of the exceptions set
forth in CPLR Article 16. 86. That by reason of the foregoing, plaintiff RALPH RAIA, has
sustained damages in an amount in excess of the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction, in an amount to be determined upon the trial of this action.
WHEREFORE, plaintiffs demand judgment against the defendants on the defendant in an amount which exceeds the monetary jurisdictional limits of any and all lower courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action, together with interest and the costs and disbursements of this action, and with interest from the date of this occurrence. Dated: New York, New York
January 25, 2011 Yours, etc. BURNS & HARRIS, ESQS. Attorneys for Plaintiff
BY: C::-:H:-:-:R::-:1:-=S=To=P:-:-H=ER::::-:-J--:_D::-:0:::-:N:-:-A:-:::D I0 233 Broadway, Suite 900 New York, NY 10279 212 393-1000
19

Barley v. The City of New York et al, Docket No. 1:11-cv-01300 (S.D.N.Y. Feb 24, 2011), Court Docket
General Information

Case Name Docket Number Court
Nature of Suit

Barley v. The City of New York et al
1:11-cv-01300
United States District Court for the Southern District of New York
Civil Rights: Other

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LHS8ATO2?documentName=30.xml

 
 Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 1 of 16

UNITED STATES DISTRICT COURT 
 SOUTHERN DISTRICT OF NEW YORK 

ROBERT BARLEY, JOHN PACCIONE, 
 MADELINE PACCIONE, DAMARIE AQUINO, 
 MARVA HARRISON, RALPH RAIA, 
 MARIA NEE, CHERIE JOHN, 
 NANCY CARIDE, 

Consolidated Plaintiffs,
-against-
THE CITY OF NEW YORK, NEW YORK CITY 
 DEPARTMENT OF CORRECTIONS, 
 BERNARD B. KERIK, GARY M. LANIGAN, 
 WILLIAM J. FRASER, MARTIN F. HORN, 
 JOHN J. ANTONELLI, DORA B. SCHRIRO, 
 and CITY OF NEW YORK DEPARTMENT OF 
 HEALTH AND MENTAL HYGIENE, 

Defendants.

11 Civ. 11 Civ. 11 Civ. 11 Civ. 11 Civ. 11 Civ. 11 Civ. 11 Civ.

1300 1301 2149 2150 2697 3277 4780 5043

(LAP) (LAP) (LAP) (LAP) (LAP) (LAP) (LAP) (LAP)

USDCSDNY
DOCUMENT ELECTRONICALLY FILED . DDAOTCE'F:1-LED-:-3,.-Z-a.-M""'/~-

INGRID MITCHELL as administratrix of the estate Anthony Mitchell and in her individual capacity,
aintiff,
-against-
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Defendants.

11 Civ. 6296 (LAP)

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 2 of 16

TINA BARTHOLOMEW,
Plaintiff,
against-
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Defendants.

11 Civ. 6297 (LAP)

ROBERT SCHWARTZ,
Plaintiff,
-against-
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Defendants.

11 Civ. 8626 (LAP)

DENNIS KELLY,
Plaintiff,
-against
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, WILLIAM J. FRASER, MARTIN F. HORN, JOHN J. ANTONELLI, DORA B. SCHRIRO, and CITY
2

11 Civ. 8627 (LAP)

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 3 of 16
OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Defendants.

JOYCE MOORE,
Plaintiff,
-against-
THE CITY OF NEW YORK, NEW YORK CITY 
 DEPARTMENT OF CORRECTIONS, BERNARD B. KERIK, GARY M. LANIGAN, 
 WILLIAM J. FRASER, MARTIN F. HORN, 
 JOHN J. ANTONELLI, DORA B. SCHRIRO, 
 and CITY OF NEW YORK DEPARTMENT OF 
 HEALTH AND MENTAL HYGIENE, 

Defendants.

11 Civ. 8956 (LAP) MEMORANDUM AND 


LORETTA A. PRESKA, Chief United States District Judge: In each of the captioned cases, a former employee of
Riker Island Correctional Facility (the "Facility") claims to
have developed cancer as a result of exposure to toxins and
carcinogens allegedly present in the land fill used to expand
Rikers Island from 90 acres in 1932 to 415 acres today.
Plaintiffs sue for damages under 42 U.S.C. § 1983. Named
Defendants are the ty of New York (the "City")l, as well as six
1 Plaintiffs improperly also name the New York City Department of Correction and the Department of Health and Mental Hygiene. These city agencies may not be sued, and their identification is redundant as the Ci is already named as a Defendant. See l ~, Walker v. ShaWl No. 08 Civ. 10043 1 2010 U.S. Dist. LEXIS
3

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 4 of 16

past commissioners of the New York City Department of Correction, in their individual and official capacities.
Defendants have moved for judgment on the pleadings in the consolidated earlier filed cases. Plaintiffs in these cases have cross-moved to amend the original complaints to recite a "Government/State Endangerment theory recovery," as set forth in the later filed complaints.
Because this Court finds that no Plaintiff has stated facts that would entitle him or her to relief under section 1983, whether under a state endangerment theory or otherwise, Defendants' motion is GRANTED as to the eight consolidated cases, and all cross-motions are DENIED as moot. The actions filed by Plaintiffs BARLEY/ JOHN PACCIONE, MADELINE PACCIONE, AQUINO, HARRISON, RAIA, NEE, JOHN, and CARIDE are dismissed, and Plaintiffs MITCHELL, BARTHOLOMEW, SCHWARTZ, KELLY, and MOORE are ordered to show cause within thirty (30) days of this order why their complaints should not so be dismissed for failure to state a claim.

I . BACKGROUND

Plaintiffs' complaints (all

which use nearly

identical language) are surprisingly short on facts. Each

62664, at *11 (S.D.N.Y. June 23, 2010) ("Plaintiff cannot sue an agency of the City of New York; he must sue the City." (citing N.Y. City Charter Ch. 17, § 396)).
4

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 5 of 16
complaint states that a Plaintiff worked at the Facility at some
point between 1990 and today, and that he or she has been
diagnosed with one of a number of forms of cancer.2 Although
each complaint alleges that the landfill used to expand Riker's
Island "was comprised of various toxins and carcinogens," no
2 Plaintiff Robert Barley was a cook at the Facility from October of 1993 through September of 2007, and was diagnosed with thyroid cancer on March I, 2008. Plaintiff John Paccione was a plumber at the Facility from 1990 through the present, and was diagnosed with brain cancer on January 7, 2010i his wife Madeline Paccione is also named as a plaintiff for her loss-of­ consortium claim. Plaintiff Damarie Aquino was a corrections officer at the Facility from 2005 through the present, and was diagnosed with breast cancer in February of 2010. Plaintiff Marva Harrison was a Public Health Educator at the Facility from 1999 through the present, and was diagnosed with breast cancer in June of 2008. Plaintiff Ralph Raia was a corrections officer at the Facility from 1989 to 2003, and was diagnosed with renal cancer on February 19, 2008. Plaintiff Maria Nee was a corrections officer at the Facility from 1991 to 2008, and was diagnosed with breast cancer on February 22, 2010. Plaintiff Cherie John was a corrections officer at the Facility from 1973 to 1985, and was diagnosed with breast cancer on July 31, 2008. Plaintiff Nancy Caride was a Secretary/Program Specialist at the Fac ity from February 16, 1988 to the present, and was diagnosed with breast cancer on August I, 2008. Plaintiff Ingrid Mitchell sues as administratrix of the estate of her husband Anthony Mitchell, who was a corrections officer at the Facility from June of 1987 to April of 2007, was diagnosed with bladder cancer on January 3, 2008, and died on September 14, 2008; Ingrid Mitchell also sues for a loss-of-consortium claim. Plaintiff Tina Bartholomew was a corrections officer at the Facility from May of 1990 to December of 2008, and was diagnosed with breast cancer on October I, 2008. Plaintiff Robert Schwartz was a corrections officer at the Facility from 2001 to 2011, and was diagnosed with prostate cancer on December 30, 2008. Plaintiff Dennis Kelly was a corrections officer at the Facility from 1986 to 2008, and was diagnosed with colon cancer on December 22, 2008. Plaintiff Joyce Moore was a corrections officer at the Facility from 1970 to 1980, and again from 1984 to 1985, and was diagnosed with breast cancer in 1998 and stomach cancer in 2009.
5 


Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 6 of 16
particular carcinogens are named. (~, Mitchell Compl. ~ 33 [Dkt. No.1 in 11 Civ. 6296].) While the complaints state that each Plaintiff was "told by his [or her] supervisors that there were not any toxic, hazardous or cancer causing toxins located on Riker's Island," no particular statement or supervisor is identified. (E.g., id. ~ 38.) And while the complaints state that each Plaintiff had been \\provided internal memorandum [sic] indicating that it was safe to work at Riker's Island" because \\no carcinogens [were] present" there, no memoranda are identified by date or author. (E.g., id. ~~ 39-40.)
Cases no. 11 Civ. 1300, 11 Civ. 1301, 11 Civ. 2149, and 11 Civ. 2150 were each originally filed in the Supreme Court of the State of New York and subsequently removed to this Court because each Plaintiff had alleged, inter alia, violations of 42 U.S.C. § 1983, over which this Court has original jurisdiction. The remaining captioned cases were filed in this Court and assigned to the same judge as related.
On June 8, 2011, Defendants moved for judgment on the pleadings in the six consolidated cases pending on that date: 11 Civ. 1300, 11 Civ. 1301, 11 Civ. 2149, 11 Civ. 2150, 11 Civ. 2697, and 11 Civ. 3277. Defendants argue that Plaintiffs' claims of exposure to workplace toxins sound only in negligence and tort, and that, under Collins v. City of Harker Heights, 503 U.S. 115 (1992) and Murray v. Connetquot Central School District
6

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 7 of 16

of lsI I 5,4 F. App'x 18 (2d Cir. 2002), cert. denied, 2003 U.S. LEXIS 5557 :(Oct. 6, 2003), such state-law claims do not

constitute a constitutional violation under section 1983, even

when undertaken by a municipal employer. Defendants also argue

that whether or not a constitutional violation occurred, the

individual Defendants are immune from suit under Pearson v.

Callahan, 555 U.S. 223, 227 (2009) because the alleged

constitutional rights were not "clearly established" when the

violations occurred.

On August 9, 2011, the then-consolidated Plaintif

filed an firmation opposing the motion3 in which they do not

contest Defendants' argument that their claims are invalid under

section 1983 as originally filed. Instead, they attempt to

recast the complaints as seeking municipal and individual

liability for "misrepresentations that Defendants made to

Plaintiffs regarding their safety on Riker's Island" under the

"Government/State Endangerment theory of recovery," which

renders a government official "liable

third-party injury

where the government ficial affirmatively acts to create or

enhance the danger that ultimately results

the individual's

harm. II (Opp. Aff. " 6, 12, 13.) To this end, Plaintiffs also

3 Affirmation of Christopher J. Donadio, Esq. in Opposition to Defendants' Motion for Judgment on the Pleadings, dated August 8, 2011 ("Opp. Aff.").
7

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 8 of 16

cross-moved to amend their complaints to set forth this new

cause action.

On August 15, intervening-filed actions 11 Civ. 4780

and 11 Civ. 5043 were consolidated with the six originally-filed

actions for all purposes. No party objected to this

consolidation.

Defendants filed a reply memorandum on September 9,

2011 in the eight then-consolidated cases (11 Civ. 1300, 11 Civ.

1301, 11 Civ. 2149, 11 Civ. 2150, 11

2697, 11 Civ. 3277, 11

Civ. 4780, and 11 Civ. 5043), challenging aintiffs' cross­

motion as futile. The reply argues that Plaintiffs' proposed

amended pleadings fail to set forth suff ient factual matter,

even if accepted as true, to "state a claim to relief that is

plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). The reply also notes that no case in this

circuit has allowed a workplace safety claim to proceed under

the State Endangerment theory of liability.

Five additional complaints have been filed since

Defendants filed their reply: 11 Civ. 6296, 11 Civ. 6297, 11

Civ. 8626, 11 Civ. 8627, and 11 Civ. 8956. Each names a new

Plaintiff and the same Defendants. Each seeks relief under the

same Government/State Endangerment theory.

8

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 9 of 16

II. DISCUSSION

A.

Standard

1. Motion for Judgment on the Pleadings

"The standard for granting a Rule 12(c) motion for

judgment on the pleadings is identical to that of a Rule

12(b) (6) motion for

lure to state a claim." Patel v.

, 259 F.3d 123, 126 (2d
~~~~~~~~~=-~~.~~~------~~------
Cir. 2001). On a motion to dismiss under Fed. R. Civ. P.

12(b) (6) the Court accepts as true all factual allegations in

the complaint and draws all reasonable i erences in the

plaintiff's favor. In re DDAVP Direct Purchaser Antitrust

Lit ., 585 F.3d 677, 692 (2d Cir. 2009). However, "the tenet

that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.

Threadbare recit s of the elements of a cause of action,

supported by mere conclusory statements, do not sUffice./I

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)

Rather, "[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face.'" Id. (quoting

Twombly, 550 U.S. at 570). "A claim has facial plausibility

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "Where

9

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 10 of 16

a complaint pleads facts that are 'merely consistent with t a

defendantts liabilitYt

'stops short of the line between

possibility and plausibility of 'entitlement to relief. '" rd.

(quoting TwomblYt 550 U.S. at 557).

2.

Under Section 1983

42 U.S.C. § 1983 provides that "[e]

person who t

under color of any statute t ordinance t regulation t custom, or

usage t of any State or Territory or the District of Columbia"

violates the constitutional rights of another may be held liable

to the injured party. To state a claim for relief under section

1983 against an individual defendant t a plaintiff must all the personal involvement of the defendant in the alleged

constitutional deprivation. Farid v. Ellen t 593 F.3d 233, 249 (2d Cir. 2010)

Cit

are considered persons under section 1983 and

thus may also be held liable thereunder.

s v. City of New

York t 524 F. 3d 346, 350 (2d Cir. 2008). Nonetheless t "a

municipality cannot

held liable solely because it employs a

tort feasor or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.1I Monell v.

Soc. Servs., 436 U.S. 658 t 691 (1978). "Instead, it is when execution of a government's policy or custom, whether made

by its lawmakers or by those whose edicts or acts may rly be

said to represent official policy, inflicts the ury that the

10 


Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 11 of 16

government as an entity is responsible under 1983." Id. at 694;

see

also

of N.Y.,
~~~~~~~L-~~~~

579 F.3d 176,

184

(2d Cir.

2009)

("To ultimately prevail on his municipal liability claim against

the ty, [a plaintiff] must establish that violations of his

constitutional rights were precipitated by a municipal policy or

custom."). Thus, for a city to be liable under section 1983 for

the unconstitutional actions of its employees, \\'a pl ntiff is

required to plead and prove three elements: (1) an offici

policy or custom that {2} causes the plaintiff to be subjected

to (3) a denial of a constitutional right.'ff Wray v. City of

N.Y., 490 F.3d 189, 195 (2d r. 2007) {quoting Batista v.

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).

B. Analysis

Plaintiffs claim violations their substantive due

process rights under the Fifth Amendment of the United States

Constitution. The substantive component of due process

encompasses, among other things, an individual's right to bodily

integrity free from unjustifiable government interference.

See Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

However, government action resulting in bodily harm is not a

substantive due process violation unless "the government action

was 'so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.'" Pena v. DePrisco, 432 F.3d

11 


Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 12 of 16

98, 112 (2d Cir.2005) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 847 n.8 (1998)).

The Court of Appeals has held that s lon 1983 does

not support a due process claim for "denial of a minimal level

of workplace safety in public employment" or for deliberate

indifference to the safety of municipal employees. Murray, 54

. App'x at 19 (citing Collins, 503 U.S. at 127 30) i see also

Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) ("Only an

affirmative act can amount to a violation of substantive due

process, because the Due Process Clause is phrased as a

limitation on the State's power to act, not as a guarantee of

cert minimal levels of safety and security.

It is not

enough to allege that a government actor failed to protect an

individual from a known danger bodi harm or failed to warn

the individual of that danger." (internal quotation marks and

citations omitted)).

As noted above, Defendants raise Murray and ColI

in

their motion papers, and Plaintiffs do not contest the

application to their original filings. Instead, Plaintiffs

attempt to frame their new and proposed complaints in terms of

firmative misrepresentations regarding safety at the Facility.

The parties disagree as to whether such a "State Endangerment"

claim is cognizable in the context of a municipal workplace, but

12 


Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 13 of 16

the Court need not reach this question. 4 Even if a state

employer's misrepresentation safety conditions could be so

egregious as to give rise to a constitutional offense,

Plaintiffs' allegations in these cases are the very sort of

" [t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements" that courts need not

accept as true after Twombly and

Iqbal, 129 S.Ct. at

1949; see also e. . ,

v. Whitman 523 F.3d 119, 129 (2d

. 2008) ("[A] bare allegation that the head of a Government

agency

knew that her statements were false and 'knowingly'

issued false press releases is not plausible in the absence of

some supporting facts.").

Plaintiffs nowhere identify an actual statement or

memorandum by any state supervisor or official denying the

presence of carcinogens on Rikers Island. Without the origin or

content of these alleged statements, the Court cannot merely

assume their existence, let alone in sufficient number to

support an "offici policy or custom." The Court cannot even

determine whether the alleged misrepresentations were made while

4 Contrary to Plaintiffs' suggest ,the Court of Appeals for the Second rcuit has not recognized the State Endangerment theory as set forth in Briscoe v. Potter, 355 F. Supp. 2d 30 (D.D.C. 2004) (finding that postal workers stated a valid claim against their supervisors for deliberate misrepresentations regarding the safety of their facility after it had been infected with anthrax), aff'd, 171 F. App'x 850 (D.C. Cir. 2005), but instead has reserved the question of whether Briscoe was correctly decided. See Lombardi, 485 F.3d at 84.
13

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 14 of 16

a given Plaintiff was employed at the Facility and thus whether

that Plaintiff could have conceivably relied on them to his or

her detriment. Plaintiffs do not lege who made the

statements, when they were made, whether testing was done before

they were made, or whether the supervisors knew the test results

at the time they made the statements. Accordingly, the Court

cannot determine whether the content

the alleged

misrepresentations gives rise to more than mere tort liability.

The Due Process Clause "does not transform every tort committed

by a state actor into a constitutional violation." DeShaney,

489 U.S. at 202. Given the Court of Appeals' warning in

Lombardi against allowing substantive due process liability "to

inhibit or control policy decisions of government agencies, even

if some decisions could be made to seem gravely erroneous in

retrospect," 485 F.3d at 84, the context and content of the

alleged misrepresentations are critically important, and their

absence is fatal to Plaintiffs' claims.

Additionally, while the "body integrity" underlying

Plaintiffs' claims is presumably a freedom from cancer,

Plaintiffs' complaints of no facts connecting their cancer to

their employment at the Facility other than the conclusory

legation that unidentified "carcinogens" are present in the

ground beneath it. Plaintiffs have not shown that cancer rates

are higher at the Facility than elsewhere in the city or state

14 


Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 15 of 16
or that their particular forms of cancer (of which Plaintiffs collectively list seven) are affected by environmental contamination, of which no particular type is alleged.
In sum, the complaints in 11 Civ. 1300, 11 Civ. 1301, 11 Civ. 2149, 11 Civ. 2150, 11 Civ. 2697, and 11 Civ. 3277 all recite state law tort claims that are improper under section 1983 view of Collins and Murray, while the proposed amended complaints and the seven most recently filed complaints provide no facts making entitlement to relief from the City under a State Endangerment theory plausible, rather than possible. As such, all claims against the City must be dismissed, and Plaintiffs' cross-motion to amend must be denied as moot.
Moreover, because Plaintiffs have not identified any misstatements by a named supervisor, the claims against these Defendants in their individual and official capacities must also be dismissed. See Farid, 593 F.3d at 249; see Iqbal, 129 S. Ct. at 1948 ("Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that each Government­ official defendant, through the official's own individual actions, has violated the Constitution.") .
III. CONCLUSION For the reasons above, Defendants' motion for judgment
on the pleadings is GRANTED as to consolidated cases 11 Civ. 15

Case 1:11-cv-01300-LAP Document 29 Filed 03/28/12 Page 16 of 16

1300 [Dkt. No. 14], 11 Civ. 1301 [Dkt. No. 14], 11 Civ. 2149

[Dkt. No. 13], 11 Civ. 2150 [Dkt. No. 13], 11 Civ. 2697 [Dkt.

No. 11], 11 Civ. 3277 [Dkt. No.9], 11 Civ. 4780, and 11 Civ.

5043, and all cross-motions [Dkt. No. 22 in 11 Civ. 1300] are

DENIED as moot.

Plaintiffs MITCHELL, BARTHOLOMEW, SCHWARTZ, KELLY, and

MOORE shall show cause within thi

(30) days

the date

hereof why their complaints should not also be dismissed for

failure to state a claim.

SO ORDERED.

Dated:

New York, New York March 28, 2012

~apm4
UNITED STATES DISTRICT JUDGE

16 


 
 Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 1 of 8
CLOSED, ECF, LEAD, RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−01300−LAP

Barley v. The City of New York et al Assigned to: Judge Loretta A. Preska Member case: (View Member Case) Related Cases: 1:11−cv−02150−LAP
1:11−cv−02149−LAP
1:11−cv−02697−LAP
1:12−cv−01103−LAP
1:11−cv−01301−LAP
Case in other court: State Court−Supreme, 301151−11 Cause: 28:1441 Notice of Removal
Plaintiff

Date Filed: 02/24/2011 Date Terminated: 03/29/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Robert Barley

represented by Seth A. Harris Burns &Harris 233 Broadway Suite 900 New York, NY 10279 (212) 393−1000 Fax: (212) 267−2110 Email: akeenan@burnsharris.com ATTORNEY TO BE NOTICED

V. Consolidated Plaintiff Ralph Raia Consolidated Plaintiff Maria Nee Consolidated Plaintiff John Paccione Consolidated Plaintiff Madeline Paccione Consolidated Plaintiff Damarie Aquino
Consolidated Plaintiff Marva Harrison

represented by Christopher James Donadio Burns &Harris 233 Broadway Suite 900 New York, NY 10279 (212) 393−1000 Fax: (212) 267−2110 Email: cdonadio@burnsharris.com ATTORNEY TO BE NOTICED
represented by Christopher James Donadio (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 2 of 8

V. Defendant The City of New York
Defendant New York City Department of Corrections Defendant Bernard B. Kerik
Defendant Gary M. Lanigan
Defendant William J. Fraser
Defendant Martin F. Horn

represented by Noe Ramon Noel Ilano Corporation Counsel Office City of New York 100 Church Street New York, NY 10007 (212) 788−8886 Fax: (212)−788−0367 Email: nilano@law.nyc.gov ATTORNEY TO BE NOTICED
Scot C. Gleason New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212)−788−2912 Fax: (212)−788−2597 Email: sgleason@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED
represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED
Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED
represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED
Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED
represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED
Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED
represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED
Scot C. Gleason

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 3 of 8

(See above for address) ATTORNEY TO BE NOTICED

Defendant John J. Antonelli

represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED

Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED

Defendant Dora B. Schriro

represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED

Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED

Defendant
City of New York Department of Health and Mental Hygiene

represented by Noe Ramon Noel Ilano (See above for address) ATTORNEY TO BE NOTICED

Scot C. Gleason (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/24/2011
02/24/2011 02/24/2011 03/01/2011
03/16/2011 03/16/2011
03/16/2011

# Docket Text
1 NOTICE OF REMOVAL from Supreme Court, County of Bronx. Case Number: 301151−11. (Filing Fee $ 350.00, Receipt Number 301151−11).Document filed by Gary M. Lanigan, William J. Fraser, John J. Antonelli, Martin F. Horn, Dora B. Schriro, Bernard B. Kerik.(rdz) (ama). (Entered: 02/25/2011)
Magistrate Judge Michael H. Dolinger is so designated. (rdz) (Entered: 02/25/2011)
Case Designated ECF. (rdz) (Entered: 02/25/2011)
2 AFFIDAVIT OF SERVICE of Notice of Removal served on Robert Barley on 2/25/2011. Service was made by Mail. Document filed by City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York. (Ilano, Noe Ramon) (Entered: 03/01/2011)
3 DEMAND for Trial by Jury. Document filed by Robert Barley(Harris, Seth) (Entered: 03/16/2011)
4 ANSWER to Complaint. Document filed by John J. Antonelli, Robert Barley, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York.(Ilano, Noe Ramon) (Entered: 03/16/2011)
5 AFFIDAVIT OF SERVICE of Answer served on Robert Barley on 3/16/2011. Service was made by Mail. Document filed by John J. Antonelli, Robert Barley, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York. (Ilano, Noe Ramon) (Entered: 03/16/2011)

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 4 of 8

03/29/2011 04/06/2011 04/06/2011 05/20/2011 05/26/2011 05/26/2011 06/02/2011
06/08/2011
06/08/2011

6 ENDORSED LETTER addressed to Judge Richard M. Berman and Judge Richard J. Holwell from Noe Ramon Ilano dated 3/10/2011 re: Defendants believe no legal basis exists for these claims and they will be moving to dismiss both actions pursuant to F.R.C.P. 12(b) utilizing the identical arguments. ENDORSEMENT: The initial pre−trial conference scheduled for 3/31/11 in Raia v. The City of New York is vacated. (Signed by Judge Richard M. Berman on 3/29/2011) (tro) Modified on 3/30/2011 (tro). Modified on 3/31/2011 (tro). (Entered: 03/30/2011)
7 AMENDED ANSWER to. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York. (Ilano, Noe Ramon) (Entered: 04/06/2011)
8 AFFIDAVIT OF SERVICE of Aff of Service served on Robert Barley on 4/5/2011. Service was made by MAIL. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York. (Ilano, Noe Ramon) (Entered: 04/06/2011)
9 INITIAL SCHEDULING CONFERENCE NOTICE AND ORDER: Initial Scheduling Conference set for 5/25/2011 at 10:00 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 5/16/2011) (tro) (Entered: 05/20/2011)
Minute Entry for proceedings held before Judge Richard J. Holwell: Initial Pretrial Conference held on 5/26/2011. The Court directs that the following cases be consolidated: 11cv01301, 11cv02149, 11cv02150, 11cv02697, and 11cv03277 be consolidated under this number. The briefing schedule on MTD set, Defendant to file by June 8, 2011 w/ cover letter explaining position on staying discovery. Plaintiff to file letter response about discovery by June 15, 2011. Plaintiff to oppose by July 8, 2011. Defendant to reply by July 25, 2011 (mbe) (Entered: 07/19/2011)
Minute Entry for proceedings held before Judge Richard J. Holwell:. Replies due by 7/25/2011. (mbe) (Entered: 07/19/2011)
10 ORDER: It is hereby ORDERED that the above captioned action be consolidated for all purposes under the docket number of the lead case Barley v. City of New York, 11 Civ. 1300. Defendants shall file their motion to dismiss by 6/8/2011, with a cover letter explaining any request to stay discovery pending the resolution of their motion. Plaintiffs shall file a letter response on the issue of staying discovery by 6/15/2011. Any opposition to the motion to dismiss shall be filed by 7/8/2011. Any reply shall be filed by 7/25/2011. (Motions due by 6/8/2011. Responses due by 7/8/2011, Replies due by 7/25/2011.) (Signed by Judge Richard J. Holwell on 6/2/2011) Filed In Associated Cases: 1:11−cv−01300−RJH et al.(tro) (Entered: 06/02/2011)
11 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Dismiss. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Dora B. Schiro, The City of New York, Dora B. Schriro, The City of New York, Bernard B. Kerik, The City of New York, William J. Fraser, New York City Department of Corrections, The City of New York. Responses due by 7/8/2011Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) Modified on 6/8/2011 (db). (Entered: 06/08/2011)
12 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: (11 in 1:11−cv−01300−RJH, 8 in 1:11−cv−02697−RJH, 10 in 1:11−cv−02149−RJH, 10 in 1:11−cv−02150−RJH, 6 in 1:11−cv−03277−RJH, 11 in 1:11−cv−01301−RJH) MOTION to Dismiss.. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 5 of 8

06/08/2011 06/08/2011
06/08/2011 06/08/2011 06/08/2011 06/08/2011

Department Of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Dora B. Schiro, The City of New York, Dora B. Schriro, The City of New York, Bernard B. Kerik, The City of New York, William J. Fraser, New York City Department of Corrections, The City of New York. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) Modified on 6/8/2011 (db). (Entered: 06/08/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Noe Ramon Ilano to RE−FILE Document (11 in 1:11−cv−01300−RJH, 8 in 1:11−cv−02697−RJH, 10 in 1:11−cv−02149−RJH, 10 in 1:11−cv−02150−RJH, 6 in 1:11−cv−03277−RJH, 11 in 1:11−cv−01301−RJH) MOTION to Dismiss. ERROR(S): Wrong Motion Type selected from Motions Menu − Select Judgment on the Pleadings. REMINDER − DO NOT attach letter to pdf. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(db) (Entered: 06/08/2011)
13 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Noe Ramon N. Ilano in Support re: (8 in 1:11−cv−02697−RJH, 6 in 1:11−cv−03277−RJH, 11 in 1:11−cv−01300−RJH, 10 in 1:11−cv−02149−RJH, 10 in 1:11−cv−02150−RJH, 11 in 1:11−cv−01301−RJH) MOTION to Dismiss.. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Dora B. Schiro, The City of New York, Dora B. Schriro, The City of New York, Bernard B. Kerik, The City of New York, William J. Fraser, New York City Department of Corrections, The City of New York. (Attachments: # 1 Exhibit Barley S# 2 Exhibit Barley Answer, # 3 Exhibit Raia S# 4 Exhibit Raia Answer, # 5 Exhibit Nee S# 6 Exhibit Nee Answer, # 7 Exhibit Paccione S# 8 Exhibit Paccione Answer, # 9 Exhibit Aquino S# 10 Exhibit Aquino Answer, # 11 Exhibit Harrison S# 12 Exhibit Harrison Answer, # 13 Exhibit 3/9/11 Decision)Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) Modified on 6/8/2011 (db). (Entered: 06/08/2011)
14 MOTION for Judgment on the Pleadings. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York. Responses due by 7/8/2011Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 06/08/2011)
15 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − NOTICE of Motion Cover Letter. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York, Martin F. Horn, Dora B. Schiro, The City of New York, Dora B. Schriro, The City of New York, Bernard B. Kerik, The City of New York, William J. Fraser, New York City Department of Corrections, The City of New York. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) Modified on 6/9/2011 (ldi). (Entered: 06/08/2011)
16 AFFIDAVIT OF SERVICE of Motion Papers served on Plaintiffs Firm − Burns &Harris on 6/8/11. Service was accepted by Ava Hardison − Paralegal. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Marva Harrison, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department of Corrections, Dora B. Schriro, The City of New York. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 06/08/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Noe Ramon Noel Ilano to RE−FILE Document (12 in 1:11−cv−01300−RJH, 11 in 1:11−cv−02149−RJH, 7 in

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 6 of 8

06/08/2011 06/09/2011 06/09/2011
07/21/2011 08/01/2011 08/08/2011 08/08/2011

1:11−cv−03277−RJH, 12 in 1:11−cv−01301−RJH, 9 in 1:11−cv−02697−RJH, 11 in 1:11−cv−02150−RJH) Memorandum of Law in Support of Motion, (13 in 1:11−cv−01301−RJH, 12 in 1:11−cv−02149−RJH, 10 in 1:11−cv−02697−RJH, 13 in 1:11−cv−01300−RJH, 8 in 1:11−cv−03277−RJH, 12 in 1:11−cv−02150−RJH) Declaration in Support of Motion. ERROR(S): Documents linked to filing error. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(db) (Entered: 06/08/2011)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. (15) HAS BEEN REJECTED. Note to Attorney Noe Ramon Noel Ilano : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(ldi) (Entered: 06/09/2011)
17 MEMORANDUM OF LAW in Support re: (11 in 1:11−cv−02697−RJH, 14 in 1:11−cv−01301−RJH, 13 in 1:11−cv−02149−RJH, 9 in 1:11−cv−03277−RJH, 14 in 1:11−cv−01300−RJH, 13 in 1:11−cv−02150−RJH) MOTION for Judgment on the Pleadings.. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 06/09/2011)
18 DECLARATION of Noe Ramon N. Ilano in Support re: (11 in 1:11−cv−02697−RJH, 14 in 1:11−cv−01301−RJH, 13 in 1:11−cv−02149−RJH, 9 in 1:11−cv−03277−RJH, 13 in 1:11−cv−02150−RJH, 14 in 1:11−cv−01300−RJH) MOTION for Judgment on the Pleadings.. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York. (Attachments: # 1 Exhibit Barley S# 2 Exhibit Barley Answer, # 3 Exhibit Raia S# 4 Exhibit Raia Answer, # 5 Exhibit Nee S# 6 Exhibit Nee Answer, # 7 Exhibit Paccione S# 8 Exhibit Paccione Answer, # 9 Exhibit Aqunio S# 10 Exhibit Aquino Answer, # 11 Exhibit Harrison S# 12 Exhibit Harrison Answer, # 13 Exhibit 3/9/11 Order)Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 06/09/2011)
19 STIPULATION AND ORDER ADJOURNING MOTION TO DISMISS: It is hereby stipulated and agreed, by and between the undersigned attorneys for the parties hereto, the plaintiff(s) time to file opposition has been enlarged from July 8, 2011 to August 8, 2011. And defendant(s) time to reply has now been enlarged from July 25, 2011, to August 25, 2011. So Ordered (Signed by Judge Richard J. Holwell on 7/19/2011) Filed In Associated Cases: 1:11−cv−01300−RJH et al.(js) (Entered: 07/21/2011)
20 ORDER: The Court is in receipt of the parties' letters regarding the propriety of a stay in this case, and GRANTS defendants' request. Because defendants have made the requisite showing on the breadth of discovery sought and the burden of responding to it, as well as on the strength of their dispositive motion, and because a stay in this case, which will last only a few months, will not prejudice the plaintiffs, the Court stays discovery pending resolution of the motion for judgment on the pleadings. (Signed by Judge Richard J. Holwell on 7/28/11) (js) (Entered: 08/01/2011)
21 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION to Amend/Correct. Document filed by Robert Barley. (Attachments: # 1 Exhibit amended complaint, # 2 Exhibit amended complaint, # 3 Exhibit amended complaint, # 4 Exhibit amended complaint, # 5 Exhibit amended complaint, # 6 Exhibit amended complaint)(Harris, Seth) Modified on 8/9/2011 (ldi). (Entered: 08/08/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Seth A. Harris to RE−FILE Document 21 MOTION to Amend/Correct. Use the event type Affirmation in Opposition to Motion found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 08/09/2011)

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 7 of 8

08/09/2011 08/15/2011
09/07/2011 09/09/2011
09/09/2011
12/20/2011 03/20/2012 03/28/2012

22 AFFIRMATION of Christopher J. Donadio in Opposition re: 14 MOTION for Judgment on the Pleadings.. Document filed by Robert Barley. (Attachments: # 1 Exhibit amended complaint, # 2 Exhibit amended complaint, # 3 Exhibit amended complaint, # 4 Exhibit amended complaint, # 5 Exhibit amended complaint, # 6 Exhibit amended complaint)(Harris, Seth) (Entered: 08/09/2011)
23 ENDORSED LETTER addressed to Judge Richard J. Holwell from Noc Ramon Ilano dated 8/9/2011 re: Counsel writes to advise the Court that plaintiff's counsel has filed two further complaints in regards to the above matter. ENDORSEMENT: For the same reasons stated on the Court's June 2, 2011 Order in Barley v. City of New York [11 cv 1300, Dkt. No. 10], 11 Civ. 4780 and 11 cv 5043 shall be consolidated under the docket number of the lead case Barley v. City of New York, 11 Civ. 1300. So Ordered. (Signed by Judge Richard J. Holwell on 8/11/2011) Filed In Associated Cases: 1:11−cv−01300−RJH et al.(jfe) (Entered: 08/15/2011)
24 STIPULATION AND ORDER: Defendants' time to reply has been adjourned from 8/25/2011 to 9/9/2011. (Replies due by 9/9/2011.) (Signed by Judge Richard J. Holwell on 9/6/2011) Filed In Associated Cases: 1:11−cv−01300−RJH et al. (ab) (Entered: 09/07/2011)
25 FIRST REPLY MEMORANDUM OF LAW in Support re: (11 in 1:11−cv−02697−RJH, 14 in 1:11−cv−01301−RJH, 13 in 1:11−cv−02149−RJH, 9 in 1:11−cv−03277−RJH, 14 in 1:11−cv−01300−RJH, 13 in 1:11−cv−02150−RJH) MOTION for Judgment on the Pleadings. City's Reply. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York. Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 09/09/2011)
26 DECLARATION of Noe Ramon Ilano in Support re: (11 in 1:11−cv−02697−RJH, 14 in 1:11−cv−01301−RJH, 13 in 1:11−cv−02149−RJH, 9 in 1:11−cv−03277−RJH, 14 in 1:11−cv−01300−RJH, 13 in 1:11−cv−02150−RJH) MOTION for Judgment on the Pleadings.. Document filed by John J. Antonelli, City of New York Department of Health and Mental Hygiene, William J. Fraser, Martin F. Horn, Bernard B. Kerik, Gary M. Lanigan, New York City Department Of Corrections, Dora B. Schriro, The City of New York. (Attachments: # 1 Exhibit Rikers Island Cancer Study)Filed In Associated Cases: 1:11−cv−01300−RJH et al.(Ilano, Noe Ramon) (Entered: 09/09/2011)
27 ENDORSED LETTER addressed to Judge Richard J. Holwell from Noe Ramon Ilano dated 12/19/11 re: Counsel for the defendants writes to request that due to the fact that there is a pending motion related to these cases, please cancel the initial conference scheduled for 1/6/12. ENDORSEMENT: Conferences in 11cv6296 and 11cv6297 adjourned sine die. (Signed by Judge Richard J. Holwell on 12/19/2011) Filed In Associated Cases: 1:11−cv−01300−RJH et al.(mro) (Entered: 12/20/2011)
28 NOTICE OF CASE REASSIGNMENT to Judge Loretta A. Preska. Judge Richard J. Holwell is no longer assigned to the case. (pgu) (Entered: 03/20/2012)
29 MEMORANDUM AND ORDER granting (14) Motion for Judgment on the Pleadings in case 1:11−cv−01300−LAP; granting (14) Motion for Judgment on the Pleadings in case 1:11−cv−01301−LAP; granting (13) Motion for Judgment on the Pleadings in case 1:11−cv−02149−LAP; granting (13) Motion for Judgment on the Pleadings in case 1:11−cv−02150−LAP; granting (11) Motion for Judgment on the Pleadings in case 1:11−cv−02697−LAP; granting (9) Motion for Judgment on the Pleadings in case 1:11−cv−03277−LAP. Defendants' motion for judgment on the pleadings is GRANTED as to consolidated cases 11 Civ. 1300 [Dkt. No. 14], 11 Civ. 1301 [Dkt. No. 14], 11 Civ. 2149 [Dkt. No. 13], 11 Civ. 2150 [Dkt. No. 13], 11 Civ. 2697 [Dkt. No. 11], 11 Civ. 3277 [Dkt. No.9], 11 Civ. 4780, and 11 Civ. 5043, and all cross−motions [Dkt. No. 22 in 11 Civ. 1300] are DENIED as moot. Plaintiffs MITCHELL, BARTHOLOMEW, SCHWARTZ, KELLY, and MOORE shall show cause within thirty (30) days of the date hereof why their complaints should not also be dismissed for failure to state a claim. (Signed by Judge Loretta A. Preska on 3/28/2012) Filed In Associated Cases: 1:11−cv−01300−LAP et al.(ft) (Entered: 03/28/2012)

Case: 1:11-cv-1300 As of: 09/15/2012 02:15 PM EDT 8 of 8

03/28/2012 03/29/2012

Transmission to Judgments and Orders Clerk. Transmitted re: (11 in 1:11−cv−05043−LAP) Order on Motion for Judgment on the Pleadings to the Judgments and Orders Clerk. Filed In Associated Cases: 1:11−cv−01300−LAP et al.(ft) (Entered: 03/28/2012)
30 CLERK'S JUDGMENT That for the reasons set forth in the Courts Memorandum and Order dated March 28, 2012, Defendants' motion for judgment on the pleadings is granted as to consolidated cases 11 Civ. 1300, 11 Civ. 1301, 11 Civ. 2149, 11 Civ. 2150, 11 Civ. 2697, 11 Civ. 3277, 11 Civ. 4780, and 11 Civ. 5043, and all cross−motions are denied as moot; The Court directs Plaintiffs MITCHELL, BARTHOLOMEW, SCHWARTZ, KELLY, and MOORE to show cause within thirty (30) days of the date hereof of the Memorandum and Order dated March 28, 2012 why their complaints should not also be dismissed for failure to state a claim. (Signed by Clerk of Court Ruby Krajick on 3/29/12) (Attachments: # 1 notice of right to appeal)Filed In Associated Cases: 1:11−cv−01300−LAP et al.(ml) (Entered: 03/29/2012)