23-7548-cv Kakar Kurtz v. Lawson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of January, two thousand twenty-five.

PRESENT: RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. ------------------------------------------------------------------ SHVETA KAKAR KURTZ, DANIEL L. KURTZ, solely in their roles as parent-guardians, A.K., a minor child, M.K., a minor child,

Plaintiffs-Appellants,

v. No. 23-7548-cv

BRENDA LAWSON, individually, and as an ACS case manager/supervisor, NEW YORK PRESBYTERIAN HOSPITAL/WEILL-CORNELL MEDICAL CENTER, MARIE LUPICA, as an individual, treating physician and state actor operating under color of law, CITY OF NEW YORK, YSCARY RODRIGUEZ, individually, as a caseworker employed by ACS,

Defendants-Appellees. * ------------------------------------------------------------------ FOR APPELLANTS: SCOTT A. KORENBAUM, New York, NY

FOR APPELLEES BRENDA LAWSON, SUSAN PAULSON (Richard CITY OF NEW YORK, YSCARY Paul Dearing, Claude S. RODRIDUEZ: Platton, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY

FOR APPELLEES MARIE LUPICA, GLENN ALAN KAMINSKA NEW YORK PRESBYTERIAN (Caryn L. Lilling, Katherine HOSPITAL/ WEILL-CORNELL Herr Solomon, on the brief), MEDICAL CENTER: Mauro Lilling Naparty LLP, Woodbury, NY

Appeal from a judgment of the United States District Court for the

Southern District of New York (Paul A. Engelmayer, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

* The Clerk of Court is directed to amend the caption as set forth above. 2 Plaintiffs Shveta Kakar Kurtz and Daniel L. Kurtz appeal from a

September 27, 2023 judgment of the United States District Court for the Southern

District of New York (Engelmayer, J.), challenging both the dismissal of their

malicious prosecution claims on summary judgment and an adverse jury verdict

on their medical malpractice claims. Plaintiffs brought this lawsuit on behalf of

themselves and their children against the Defendants-Appellees arising out of a

child abuse investigation conducted by employees of the City of New York’s

Administration for Children’s Services (“ACS”). The ACS investigation

stemmed from two emergency room visits in short succession and subsequent

follow-up visits involving the parents’ infant child, A.K. ACS initiated removal

proceedings in New York City family court, but the action was ultimately

dismissed with prejudice. We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision to affirm.

I. Malicious Prosecution Claims

Plaintiffs first contend that the District Court erred in granting summary

judgment in favor of Defendants-Appellees on their malicious prosecution

claims. We review the District Court’s grant of summary judgment de novo,

3 construing the evidence presented by each side in the light most favorable to

Plaintiffs, as the non-moving parties, and drawing all reasonable inferences in

their favor. See Sotomayor v. City of New York,

(2d Cir. 2013).

Summary judgment may be granted where the non-movants fail to rebut the

movants’ showing that they are entitled to judgment as a matter of law. See

Nick’s Garage, Inc. v. Progressive Cas. Ins. Co.,

, 113–14 (2d Cir. 2017).

Plaintiffs contend that they adduced sufficient evidence at the summary

judgment stage for a reasonable juror to conclude that the ACS employees

“deliberately misrepresented” the evidence available to them when they initiated

removal proceedings, thus negating the inference of probable cause created by

the family court’s grant of ACS’s petition for removal. Appellants’ Br. 25; see

Kurtz v. Hansell,

, 452–55 (S.D.N.Y. 2023). We disagree.

The District Court correctly observed that “[i]n these circumstances,”

Plaintiffs needed but failed to “adduce evidence of bad faith sufficient to negate

probable cause,” meaning “evidence on which a reasonable factfinder could find

that misrepresentations in or omissions from ACS’s Petition resulted in its being

intentionally or recklessly false.” Kurtz, 664 F. Supp. 3d at 455 (quotation marks

omitted). On appeal, Plaintiffs fail to identify record evidence from which a

4 reasonable finder of fact could conclude that the ACS employees made any false

or misleading statements intentionally, recklessly, or otherwise in bad faith. See

Boyd v. City of New York,

(2d Cir. 2003) (observing that a

presumption of probable cause may be rebutted by a showing that the

prosecution was premised on “misrepresented or falsified evidence” or on other

“bad faith” actions (quotation marks omitted)). Because “[t]he existence of

probable cause is a complete defense to a claim of malicious prosecution in New

York,” Dufort v. City of New York,

(2d Cir. 2017) (quotation

marks omitted), we affirm the District Court’s partial grant of summary

judgment dismissing Plaintiffs’ malicious prosecution claims.

II. Motion to Preclude

Plaintiffs also challenge the District Court’s denial of their motion in limine

to preclude evidence of the parents’ behavior during the two initial emergency

room visits. “We review a district court’s evidentiary rulings deferentially,

reversing only for abuse of discretion.” United States v. Dupree,

(2d Cir. 2013). We will find an abuse of discretion only if we conclude that the

challenged ruling “is manifestly erroneous or arbitrary and irrational.” United

States v. Dawkins,

(2d Cir. 2021) (quotation marks omitted). The

5 District Court did not abuse its discretion in determining that “[t]he parents’

statements and conduct, taken as a whole, reasonably bear on [Defendant] Dr.

Lupica’s state of mind and thought process relative to the care and treatment

plan” of the infant, as well as the “length and scope of [her] examination,” all of

which were relevant to the medical malpractice claim. Spec. App’x 68.

Plaintiffs also argue that Defendants’ counsel improperly crossed the line

in his closing argument by citing evidence of Plaintiffs’ emergency room

behavior to attack their credibility. But even assuming that these summation

remarks violated the District Court’s in limine ruling, Plaintiffs did not raise any

objections before the District Court, and do not demonstrate on appeal how any

such error here was “so serious and flagrant that it [went] to the very integrity of

the trial.” Pescatore v. Pan Am. World Airways, Inc.,

, 18 (2d Cir. 1996)

(quotation marks omitted). And in any event, the District Court had previously

given a timely and appropriate limiting instruction that the jurors should not

consider testimony about the parents’ behavior as bearing on their character or

credibility. See United States v. Downing,

(2d Cir. 2002). We

accordingly reject Plaintiffs’ challenge and affirm the judgment in favor of

Defendants-Appellees with respect to the medical malpractice claims.

6 CONCLUSION

We have considered Plaintiffs’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District

Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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