13-1665-cv
La Russo v. St. George’s University School of Medicine



                                UNITED STATES COURT OF APPEALS

                                        FOR THE SECOND CIRCUIT

                                             August Term 2013

    Heard: November 5, 2013                                    Decided: March 4, 2014

                                        Docket No. 13-1665-cv

- - - - - - - - - - - - - - - - - - - - - -
MARIA LA RUSSO, as attorney in fact for
A. Matthew De Lucia,
     Plaintiff-Appellant,

                          v.

ST. GEORGE’S UNIVERSITY SCHOOL OF MEDICINE,
JOHN DOES, 1-5, (as employees, agents, and/or
servants of St. George’s and/or as independent
contractors), JANE DOES, 1-5, (as employees,
agents, and/or servants of St. George’s and/or
as independent contractors),
     Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - -

Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.

        Appeal from the March 28, 2013, judgment of the United

States District Court for the Southern District of New York

Edgardo Ramos, District Judge), rejecting a challenge to removal

jurisdiction and dismissing as time-barred a complaint alleging

medical malpractice.

        Judgment affirmed.


                                                         -1-
                              Joshua S. Moskovitz, Beldock Levine &
                                Hoffman LLP, New York, NY (Myron
                                Beldock, Beldock Levine & Hoffman
                                LLP, New York, NY, on the brief),
                                for Appellant.

                              Gerald W. Sawczyn, Proskauer Rose LLP,
                                New York, NY (Charles S. Sims,
                                Proskauer Rose LLP, New York, NY, on
                                the brief), for Appellees.


JON O. NEWMAN, Circuit Judge.

       This appeal primarily concerns a narrow issue of federal

procedural law and an equally narrow issue of New York procedural

law.    The federal law issue is whether a real party defendant in

interest that owns and operates a non-juridical entity that was

improperly sued in state court may remove a diversity case to

federal court without filing an appearance in the state court

prior to attempting removal.     The state law issue is whether New

York’s rule tolling a limitations period because of a plaintiff’s

insanity, N.Y. C.P.L.R. § 208 (McKinney 2013), applies to the

facts    of   this   case.   These    issues   arise   on   an   appeal   by

Plaintiff-Appellant Dr. Maria La Russo, as attorney in fact for

her son, A. Matthew De Lucia, from the March 28, 2013, judgment

of the United States District Court for the Southern District of

New York (Edgardo Ramos, District Judge).         The judgment, entered

after the District Court denied La Russo’s challenge to removal,

                                     -2-
granted a motion by Defendant-Appellee St. George’s University,

Ltd. (“SGU Ltd.”) to dismiss because La Russo’s complaint was

time-barred. See La Russo v. St. George’s University School of

Medicine, 936 F. Supp. 2d 288 (S.D.N.Y. 2013) (“Dist. Ct. Op.”).

The complaint asserted medical malpractice, breach of contract,

and negligence claims based on alleged failures by St. George’s

University School of Medicine (“SGU Med.” or “the School”) to

appropriately treat De Lucia’s mental illness.

    We conclude that the case was properly removed and that the

complaint was properly dismissed as time-barred.    We therefore

affirm.

                           Background

    The following facts are based primarily on La Russo’s

complaint, which we assume to be true for purposes of this

appeal. See, e.g., Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.

2008).

    La Russo’s son, De Lucia, was formerly a student at SGU Med.

in Grenada.   Prior to his attending the School, La Russo and her
son attended an information session at which School staff assured
attendees “that there would be medical facilities and treatment

available for students on the Grenada Campus, including medical
evacuation if needed.” Complaint ¶ 57.   They were also provided


                               -3-
with a publication entitled “St. George’s University School of
Medicine; Think Beyond; 2005-2006,” which stated:

            University Health Services (UHS) maintains
            modern clinic facilities with scheduled and
            walk-in hours from 9:00AM to 4:30PM, Monday
            through Friday. Additionally, there is daily
            24-hour    coverage    by   well-credentialed
            physicians and physician assistants to provide
            students with emergency care when the clinic
            is closed. Medical emergencies in Grenada are
            referred to Grenada General Hospital or St.
            Augustine Clinic . . . . University Health
            Services facilitates with air evacuation, if
            indicated, on both campuses.

Id. ¶ 58.
    In January 2007, De Lucia received a letter of admission

from the School.       Enclosed with the letter was a handbook from
the Office of the Dean of Students that stated, “The Office of

the Dean of Students advocates on behalf of students to help you

make the best use of the services available both on and off
campus.     Any student with mental or physical disabilities is

provided a wide range of support services.” Id. ¶ 59.
    De Lucia began attending the School in August 2007.            In the

spring    of   2009,   he   visited   with   his   faculty   advisor,   Dr.
Jacqueline Stanley.         De Lucia arrived at the meeting looking
disheveled and dressed in sweat pants despite the hot climate and

asked to see the dean regarding academic issues.             Stanley told
De Lucia he could not see the dean due to his attire and
encouraged him instead to go to the beach and take a vacation.

                                      -4-
Stanley        did   not   advise    De   Lucia   to   “visit    the    counseling
department, speak with the dean of students, or see any medical

or mental health professional who would have been able to counsel
him and provide medical treatment and medication as necessary.”
Id. ¶ 26.
       De Lucia went on a sailing trip in May of 2009.                       Upon his

return, he was suffering from mental illness.                          He wandered
aimlessly on and off the school’s campus, and was “disoriented”

and “sickly.” Id. ¶ 28.             Other students alerted School officials

to De Lucia’s condition.             In response, School security officers
picked up De Lucia in the middle of the night1 and escorted him

to Mount Gay Hospital in Grenada, an institution La Russo claims
“had       a   bad   reputation,       maintained      deplorable      and     unsafe

conditions, and did not administer appropriate care.” Id. ¶ 49.

       School staff failed to inform De Lucia’s parents about his
admission to the hospital and failed to provide an “informative

response” to his parents’ messages. Id. ¶ 34.                   On May 14, after

being notified of De Lucia’s admission to the hospital by fellow
students, De Lucia’s father traveled to the hospital where he
found his son “in an outdoor cell lying on a concrete floor

without a mattress, naked except for boxer shorts that were


       1
       The date of this occurrence is not specified in La Russo’s
complaint.


                                          -5-
hanging down.” Id. ¶ 36.                De Lucia was “incoherent due to
overdosing of Haldol and other drugs,” id. ¶ 37, and “was
experiencing muscle weakness, muscle tremors, dilated eyes,

drowsiness, and dry mouth and lips due to his overmedication and
a lack of adequate hydration,” id. ¶ 38.                 His body was “covered
with insect bites and a noxious odor of urine and feces permeated

his person.” Id. ¶ 39.           De Lucia’s parents obtained his release
from Mount Gay Hospital on May 16, 2009, and he returned to the

United States the following day.
      De   Lucia    returned      to    the    School   twice   in    attempts    to

complete his medical education.                On both occasions, however, he

became ill and returned to the United States.                   Since his return
to the United States, De Lucia has required medical treatment to

ameliorate    conditions         that    were    non-existent      prior   to    his

admission to Mount Gay Hospital.

      La Russo’s lawsuit. La Russo initiated a lawsuit in New York
Supreme Court by filing a notice and summons.                   She alleged that

SGU   Med.   engaged       in    psychiatric      malpractice,       breached    its
contract with De Lucia, and was negligent.                   La Russo’s claims
were based on the School’s response to De Lucia’s mental health

difficulties       while    he    was   a     student   at   the   School.       Her
psychiatric malpractice claim stems from the School’s “fail[ure]
to refer [De Lucia] to counseling or other medical treatment and,

though aware of his condition, [its] fail[ure] to intervene and
                                         -6-
provide    [De      Lucia]   with   proper   psychiatric     and    medical
treatment.” Id. ¶ 72.
      La Russo also alleges a breach of contract claim.                 She

alleges that a contract was formed between the School and De
Lucia “when [the School] offered a variety of educational and

related services to [De Lucia] and [De Lucia] agreed to, and did,
pay tuition in exchange for those services.” Id. ¶ 77.             Further,
she alleges that the School “breached the contract when, instead

of providing medical treatment by well-credentialed physicians
and     physician     assistants    at    [the   School’s]    facilities,

appropriate emergency care, or emergency evacuation, [the School]

failed to provide proper medical treatment . . . .” Id. ¶ 79.
      Finally, La Russo alleges that the Defendants owed both
herself and De Lucia a duty to exercise “reasonable care and

diligence in safeguarding Mr. De Lucia, and ensuring that no

unnecessary harm befell him.” Id. ¶ 84.           She alleges that the

School’s employees and/or agents, including Stanley, “negligently

failed to use due care” handling De Lucia’s mental illness. Id.
¶ 85.     She also alleges that the School breached its duty to
properly train its employees to “recognize and properly address

a student’s need for psychological services and/or a student’s
psychological crisis.” Id. ¶ 86.

      La Russo’s lawsuit was filed on November 15, 2011.                The
notice and summons named “St. George’s University School of
                                    -7-
Medicine” as the sole defendant and was amended to add ten “Doe”
defendants.    La Russo served a copy of the summons and notice on

the New York Secretary of State, mailed a copy by certified mail
to SGU Med. in Grenada, and also served the summons and notice
on St. George’s University, LLC, but not SGU Ltd.

    On March 7, 2012, La Russo sought an Order to Show Cause
seeking permission to file a supplemental summons adding SGU
Ltd., SGU LLC, USS LLC, and Stanley as defendants, and seeking

a ruling that the claims against the additional defendants

related back to the time the initial summons was filed.                     The

Order to Show cause was issued on March 12, 2012.              On April 19,
2012, one day before the Order to Show Cause was returnable, SGU

Ltd., asserting that it was the entity that owns and operates the

non-juridical named defendant in the caption, filed a notice of
removal to the District Court.

    La     Russo   moved   to   dismiss    for   lack   of   subject    matter

jurisdiction, arguing that because SGU Ltd. had never formally
intervened in the action or been joined as a defendant, removal

was improper.      The District Court denied the motion to dismiss
and granted the Defendants’ motion to dismiss under Rule 12(b)(6)

because the medical malpractice claim was time-barred and the
contract    and    negligence     claims    were    duplicative        of   the
malpractice claim.



                                    -8-
                            Discussion
I.   Removal
     La Russo first contends that SGU Ltd. had no authority to

remove this case to the District Court.     She argues that if SGU

Ltd. believed that SGU Med. lacked capacity to be sued, it should

have moved to dismiss the case in state court.     La Russo further

contends that under New York General Associations Law § 13, she

may sue SGU Med. as an unincorporated association.         SGU Ltd.

replies that “where, as here, a legally non-existent entity is

named as a defendant, the only logical ‘defendant’ vested with

authority to remove is the real defendant in interest, which here

is SGU Ltd.”

     Initially we note that La Russo’s attempt to sue SGU Med.

was ineffective.     Rule 17(b) of the Federal Rules of Civil

Procedure provides, with an exception not relevant to this case,2

that state law governs whether a party has the capacity to be

sued.    Fed. R. Civ. P. 17(b) (“Capacity to sue or be sued is

determined as follows: . . . (3) for all other parties [other

than an individual or corporation], by the law of the state where

the court is located . . . .”).     Under New York law, an action


     2
       The exception permits an unincorporated association that lacks
capacity to sue or be sued under state law to sue or be sued in its
common name to enforce a substantive right existing under the United
States Constitution or laws. See Fed. R. Civ. P. 17(b)(3)(A).
                                 -9-
against     an   unincorporated   association   can   be   brought   only
“against the president or treasurer.” N.Y. Gen. Ass’ns Law § 13

(McKinney 2013).       See, e.g., Fairfield Lease Corp. v. Empire
Employees Sunshine Club, 345 N.Y.S.2d 305, 329 (N.Y. Dist. Ct.
1973) (“The fatal defect in the plaintiff’s contention is that

this action, if it is to be maintained, must be against the
president of the association.”); League of Mutual Taxi Owners v.
United Const. Workers, Local 35, 90 N.Y.S.2d 288, 288-89 (N.Y.

Sup. 1949) (“[Defendant] is described in the complaint as an

unincorporated association . . . . As such, it is not considered
a legal entity, but section 13 of the General Associations Law

provides for the maintenance of actions against the president or

treasurer of the association . . . .”).         La Russo did not sue
either the president or the treasurer of SGU Med.              SGU Med.

itself was not an entity with capacity to be sued under state

law.3



        3
       La Russo contends that the District Court in Kosta v. St.
George’s University School of Medicine, 641 F. Supp. 606 (E.D.N.Y.
1986), ruled that SGU Med. was an entity with capacity to be sued.
However, the St. George’s entity that was a defendant in Kosta was not
the unincorporated association that La Russo claimed was the defendant
in this litigation. It was “an entity organized under the laws of
Grenada[,] and its stock, which is controlled by four shareholders,
has been placed into an educational trust controlled by nine
trustees.” Id. at 608. SGU Ltd. represents, without contradiction,
that this entity was St. George’s University School of Medicine Ltd.,
which was the predecessor of SGU Ltd. Br. for SGU Ltd. at 30.



                                   -10-
    We next turn to the issue whether SGU Ltd. was entitled to

remove the case to the District Court.          SGU Ltd. asserts it was

entitled to remove because, as the owner and operator of the non-

juridical entity that La Russo attempted to sue, it is the “real

defendant in interest.” Br. for SGU Ltd. at            17.     Although the

quoted phrase appears to describe accurately the status of SGU

Ltd. in this litigation, we pause to consider it because it does

not appear in the Federal Rules of Civil Procedure, including

Rule 17, or in the removal statute, 28 U.S.C. § 1441.

    Rule 17(a), captioned, “Real Party in Interest,”              provides:

“An action must be prosecuted in the name of the real party in

interest.” Fed. R. Civ. P. 17(a)(1).        In terms, the rule appears

to apply to the party initiating an action, not a defendant

resisting a claim.    That is the view of a leading treatise.           “By

its very nature, Rule 17(a) applies only to those who are

asserting a claim and thus is of most importance with regard to

plaintiffs,” 6A Charles Alan Wright & Arthur R. Miller, Federal

Practice   and   Procedure   §   1543    (4th   ed.   2007),    and   flatly

declares, “Rule 17(a) is limited to plaintiffs,” id. § 1542.

    The phrase “real party defendant in interest” appears to

have entered federal jurisprudence in 1886 in the syllabus to an




                                  -11-
opinion ruling that the wife of an executor was the real party

defendant in interest whose assets would be diminished by the

lawsuit. See Witters v. Sowles, 28 F. 121 (C.C. Vt. 1886).                     The

phrase has been used mostly by district courts, occasionally by

courts of appeals, and once by the Supreme Court, see Lumbermen’s

Mutual Casualty Co. v. Elbert, 348 U.S. 48, 51 (1954).

      The first decision to use the phrase in the context of a

challenged removal is the opinion of District Judge Charles S.

Haight, Jr. in M.E. Aslett Corp. v. Crosfield Electronics, Inc.,

No.   86   CIV.   3549,    1987    WL    7023     (S.D.N.Y.   Feb.   17,    1987).

Crosfield Electronics (U.S.A.) Ltd. removed to the district court

a case filed in a state court against an entity identified as

“Crosfield Electronics, Inc.”             The plaintiff sought a remand to

the state court on the ground that removal could be achieved only

by the party named as a defendant in the complaint, i.e.,

Crosfield    Electronics,         Inc.          Affidavits    established    that

“Crosfield Electronics, Inc.” was a trade name of Crosfield

Electronics (U.S.A.) Ltd. and had no legal existence or the

capacity to be sued.

      Acknowledging       that    28     U.S.C.     §   1441(a)   permits     “the

defendant” to remove a case over which a district court has




                                         -12-
jurisdiction, Judge Haight declined to read “the defendant” as

the entity named as a defendant in the complaint, and instead

read the phrase to mean “the real party defendant in interest.”

M.E. Aslett, 1987 WL 7023, at *2.          As he explained,     “Removal

cannot be denied to this defendant merely because plaintiff

improperly sued its fictitious trade name.” Id.         Removal by the

real party defendant in interest was subsequently approved by

other district courts. See Hillberry v. Wal-Mart Stores East,

L.P., No. Civ.A.3:05CV-63-H, 2005 WL 1862087 (W.D. Ky. Aug. 3,

2005)   (named   defendant    was     non-existent   entity);    Pioneer

Exploration, Ltd. v. Kansas Gas Service Co., No. 04-1335, 2004

WL 2931403 (D. Kan. Dec. 17, 2004) (named defendant existed only

to license trade name).

    The real party defendant in interest is not only entitled to

remove, but, if it seeks removal, it must act promptly because

the 30-day interval in which it is permitted to do so, see 28

U.S.C. § 1446(b) (2013), begins when it is “on notice that the

wrong company defendant has been named.” Hillberry, 2005 WL

1862087, at *1; see Ware v. Wyndham Worldwide Inc., Civ. No. 09-

6420, 2010 WL 2545168, at *2 (D. N.J. June 18, 2010) (30-day
interval   started   when    real    defendant   accepted   service   of




                                    -13-
complaint, although complaint named non-existent entity).
    The unstated premise of all of these decisions, with which

we fully agree, is that the concept of a “real party defendant

in interest” is not only entirely valid, it is an important

aspect of removal jurisprudence, despite the absence of the

phrase from Rule 17 or elsewhere in the Federal Rules of Civil

Procedure.

    We next consider La Russo’s contention that even if SGU Ltd.

was entitled to remove, it failed to do so properly because it

had not entered an appearance in the state court. La Russo makes

this claim obliquely by pointing out that in all of the removal

cases discussed above, the removing defendant had filed an

appearance in the state court.       The argument lacks merit.

Nothing in sections 1441 or 1446 requires a removing defendant

to have appeared in the state court proceeding prior to removal.

Nor is there merit in La Russo’s claim that removal was improper

because SGU Ltd. was not served.     Service of process upon a

removing defendant is not a prerequisite to removal. See Delgado

v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000); City of Ann

Arbor Employees’ Retirement System v. Gecht, No. C-06-7453, 2007

WL 760568, at *9 (N.D. Cal. Mar. 9, 2007).




                              -14-
    Next, we consider La Russo’s claim that, even if SGU Ltd.

properly    removed,   the   District   Court     lacked   diversity

jurisdiction.   Contrary to her claim, diversity jurisdiction was

not destroyed by the listing of SGU Med., alleged to be a New

York resident, as a named defendant.    As a non-juridical entity

that cannot be sued, its being named as a purported defendant

does not destroy diversity jurisdiction.        Furthermore, “[e]ven

if a named defendant is [a non-diverse] citizen, however, it is

appropriate for a federal court to dismiss such a defendant and

retain diversity jurisdiction if the complaint shows there is no
possibility that the plaintiff can establish any cause of action

against that defendant.” Tillman v. R.J. Reynolds Tobacco, 253

F.3d 1302, 1305 (11th Cir. 2001).       Nor is there merit in La

Russo’s claim that diversity jurisdiction is lacking because SGU

Ltd. is owned by St. George’s University, LLC, a Delaware
corporation that Plaintiff alleged has a “business presence” in

New York.   Diversity jurisdiction depends on the citizenship of
a corporate defendant with capacity to be sued, see 28 U.S.C.

§ 1332(c)(1), not the citizenship of the corporate defendant’s

corporate owner.




                               -15-
II. Timeliness and the Insanity Toll

      The District Court concluded that La Russo’s claim was time-

barred because the two and one-half year limitations period for

the   medical   malpractice   claim,   see   N.Y.   C.P.L.R.   §   214-a

(McKinney 2013), expired on November 14, 2011, one day before the

summons was filed. See Dist. Ct. Op., 936 F. Supp. 2d at 299.

The Court deemed the limitations period to start when De Lucia’s

malpractice accrued, which was May 14, 2009, the day De Lucia was

brought to Mount Gay Hospital. See id.        However, N.Y. C.P.L.R.

§ 208 provides, “If a person entitled to commence an action is

under a disability because of infancy or insanity at the time the

cause of action accrues, and . . . if the time otherwise limited

is less than three years, the time shall be extended by the

period of disability.”   La Russo does not dispute that she filed

her claims after the limitations period of two and one-half years

for her malpractice claim had run.      She argues that the statute

of limitations should be tolled because of De Lucia’s insanity

for at least two days, apparently referring to May 14 and 15, the

day De Lucia was brought to Mount Gay Hospital and the next day

when his father observed his condition at the hospital. Two days

of De Lucia’s insanity would have extended the limitations period




                                -16-
to November 16, 2009, in which event the summons, filed on
November 15, 2009, would have been timely by one day.
    In     ruling   that   La   Russo’s     claim   was   time-barred,     the

District Court did not initially apply the requirement of section

208 that in the event of insanity “the time shall be extended by

the period of disability.”          Instead, the Court first ruled that

the insanity toll did not apply because De Lucia “did not

continuously     experience     a   total   ‘inability     to   function    in

society’ during the relevant time period.” Dist. Ct. Op., 936 F.

Supp. 2d at 300 (quoting McCarthy v. Volkwagen of America, Inc.,

55 N.Y.2d 543, 548 (1982) (emphasis in original).               The District

Court understood the relevant time period to be the two and one-

half years limitations period starting from the date the cause
of action accrued, i.e., May 14, 2009.4             The Court derived the

     4
         The District Court stated:

     Defendant argues, and Plaintiff appears to concede, that the
     malpractice cause of action accrued, at the latest, when De
     Lucia was transferred to Mount Gay, which occurred no later
     than May 14, 2009. Mot. to Dismiss 9–10, 14. Thus, the
     latest date on which the two and one-half years limitations
     period could have expired was November 14, 2011, one day
     prior to the filing of the summons in state court. Id. To
     satisfy the standard for insanity under CPLR 208, Plaintiff
     would therefore have to allege that De Lucia continuously
     experienced an “over-all inability to function in society”
     during the period between May 14, 2009 and November 14,
     2011.

Dist. Ct. Op., 936    Supp. 2d at 299 (second emphasis added).



                                     -17-
requirement of “continuous” insanity from de los Santos v.
Fingerson, No. 97 Civ. 3972, 1998 WL 740851, at *3 (S.D.N.Y. Oct.
23, 1998). See Dist. Ct. Op., 936 F. Supp. 2d at 298.
      Although de los Santos stated that “the insanity alleged

under § 208 must be found to be continuous,” 1998 WL 740851, at

*3 (citing Graboi v. Kibel, 432 F. Supp. 572, 579 (S.D.N.Y.
1977)), it did not require “continuous” insanity throughout the

limitations period, as did the District Court here.            Instead, de

los   Santos   said    the   time   within   which   the   action    must   be

commenced runs from “‘after the disability ceases.’” Id. (quoting

N.Y. C.P.L.R. § 208).        Graboi, cited by de los Santos, also said

that the period of insanity must be continuous, citing Jordan v.
State, 56 Misc. 2d 1032, 290 N.Y.S.2d 621 (Ct. Claims 1968), but

did not indicate the relevant time period in which the insanity

must be continuous.5         It is from Jordan that we learn the time

period    in   which   insanity     must    be   continuous   to    toll    the

limitations period of section 208.




      5
       Graboi also cited Schwartzberg v. Teacher’s Retirement Bd., 70
N.Y.S.2d 770 (Sup. Ct. 1947), rev’d on other grounds, 273 App. Div.
240, 76 N.Y.S.2d 448 (1st Dep’t 1948), aff’d, 298 N.Y.2d 395, 373
N.Y.S.2d 39 (1975), but that case involved the different question of
whether a person’s mental illness during confinement in a mental
institution continued with sufficient severity after her discharge to
render her incompetent to execute a document.



                                     -18-
    Jordan concerned tolling that resulted from incarceration.

After an initial incarceration, the plaintiff was released and

again incarcerated.      The issue was whether the second period of

incarceration tolled the limitations period.           The Court ruled

that it did not, at least where the interval during which the

plaintiff   was   able    to   pursue   a   claim    after    the     first

incarceration     was    substantial.   290   N.Y.S.2d       at     625-26.

Interestingly, this principle was based on an early Kentucky case

involving successive periods of insanity.           See Duncan v. Vick,

7 Ky. L. Rptr. 756 (Ky. 1886).

    Thus, the holding of Jordan, the ultimate case law source of

the requirement that insanity must be continuous, means that a
tolling disability ceases to toll if interrupted by an interval

in which there was no disability. Jordan makes clear that “where

a disability existing at the time of the accrual of the cause of
action is removed the statute will then run and will not be
suspended by any subsequent intervening disability.” 290 N.Y.S.2d

at 626; see McCarthy, 55 N.Y.2d at 546 (“[T]he limitations period
in a personal injury action will be extended to three years after
the disability ceases.”); Washington v. Doe, No. 08 CV 4399, 2011




                                 -19-
WL 679919, at *2 (E.D.N.Y. Feb. 16, 2011) (“Under this continuity
requirement, a lucid interval of any significant duration stops

the toll.”).
    When the District Court ruled that De Lucia’s insanity was

not continuous throughout the interval from May 14, 2009, until
November 14, 2011, it pointed to periods of unquestioned lucidity
after De Lucia’s release from Mt. Gay Hospital. See Dist. Ct.
Op., 936 F. Supp. 2d at 299-300.       But the Court did not initially

consider La Russo’s claim that De Lucia was insane for at least

two days of hospitalization, May 14 and 15, a claim that, if
true, would have rendered his lucidity after May 15 irrelevant.

If De Lucia was insane for at least those two days, section 208

would have extended the limitations period by two days.
    Although misinterpreting the time period in which insanity

must be continuous, the District Court went on to rule that for

the entire two and one-half years period from May 14, 2009, De

Lucia was not insane within the meaning of section 208. See id.
at 300.    If this ruling, which covers May 14 and 15, is

sustainable,   the   error   with    respect   to   the   requirement   of
continuous insanity from the date the cause of action accrued is
of no consequence.




                                    -20-
       New York construes insanity as used in N.Y. C.P.L.R. § 208

narrowly.    McCarthy, the leading New York case on the definition

of insanity in section 208 held that “the Legislature meant to

extend the toll for insanity to only those individuals who are

unable to protect their legal rights because of an over-all

inability to function in society.” 55 N.Y.2d at 548, 450 N.Y.S.2d

457.    Courts have noted that the statute “speaks in terms of

insanity, not merely mental illness,” and “apathy, depression,

posttraumatic     neurosis,   psychological    trauma   and   repression

therefrom    or   mental   illness   alone    have   been   held   to   be

insufficient to invoke the [insanity] toll.” See de los Santos,

1998 WL 740851, at *4 (citing Wenzel v. Nassau Cnty. Police

Dep't, No. 93 Civ. 4888(ADS), 1995 WL 836056, at *4 (E.D.N.Y.

Aug. 5, 1995) (citing cases)) (internal quotation marks omitted);

see also Sanders v. Rosen, 159 Misc.2d 563, 605 N.Y.S.2d 805, 814

(N.Y. Sup. Ct. 1993) (“The Court of Appeals [has] made it quite

plain that apathy, depression and neurosis are not so disabling

as to toll the Statute of Limitations.”). In determining the

applicability of the insanity toll, it is appropriate to “focus

on the plaintiff's conduct and activities.” Dumas v. Agency for




                                  -21-
Child Development, 569 F. Supp. 831, 834 n. 5 (citing cases).

“Difficulty   in   functioning     is     not    sufficient       to   establish

insanity for purposes of § 208; rather, the plaintiff must be

totally   unable   to   function   as     a     result   of   a    ‘severe   and

incapacitating’ disability.” Swartz v. Berkshire Life Ins. Co.,

No. 99 Civ. 9462, 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28,

2000) (citation omitted).

    Applying New York’s strict standard to the interval that

included May 14 and 15, the District Court stated:

    [A]ssuming arguendo that De Lucia's mental condition
    upon his admission to Mount Gay was continuous
    throughout the relevant period, the Court finds that
    Plaintiff's allegations do not establish a disability
    so “severe and incapacitating” that it rendered De
    Lucia “totally unable to function.” Swartz, 2000 WL
    1448627, at *5. The only allegations Plaintiff makes
    regarding De Lucia's mental state during the relevant
    period is that he was “disoriented, sickly, and had
    been aimlessly wandering on and off the St. George's
    campus,” and that during his stay at Mount Gay, he
    appeared “incoherent due to overdosing of Haldol and
    other drugs” and “frightened” touched by an aggressive
    patient. Compl. ¶¶ 28, 35–37, 43. These allegations are
    insufficient as a matter of law to satisfy the very
    high standard required to invoke tolling for insanity”
    under CPLR 208. See, e.g., Callahan v. Image Bank, 184
    F.Supp.2d 362, 363–64 (S.D.N.Y.2002) (holding that
    allegations that plaintiff was “unable to work or care
    for herself,” “unable to leave her home unescorted,”
    “experienced severe side effects from medication and




                                   -22-
    black-outs ... experienced a period of hospitalization
    ... arising from [ ] depression,” and “suffers from
    suicidal ideation” were insufficient to satisfy the
    standard for tolling under CPLR 208); Dumas, 569 F.
    Supp. at 833 (holding that diagnosis of “schizophrenia,
    paranoid, chronic with acute exacerbation” did not
    result in tolling under CPLR 208, as plaintiff's
    disability “was not of the severe and incapacitating
    nature contemplated by the tolling statute,” and noting
    that “[t]he statute speaks in terms of insanity, not
    merely mental illness”); Eisenbach, 62 N.Y.2d at 974,
    479 N.Y.S.2d 338, 468 N.E.2d 293 (holding that
    plaintiff's   hospitalization   during   which   strong
    painkillers were administered resulting in plaintiff
    being “generally confused, disoriented, and unable to
    effectively attend to [his] affairs” did not rise to
    the level of insanity under CPLR 208). Moreover, to the
    extent that Plaintiff's allegations suggest that De
    Lucia suffered from an unidentified “mental illness”
    which required him to undergo “continuous psychiatric
    care since his return from Grenada in May 2009,” Compl.
    ¶ 69, case law is clear that mental illness alone is
    insufficient to invoke the insanity toll. See de los
    Santos, 1998 WL 740851, at *4.

Dist. Ct. Op., 936 F. Supp. 2d at 300 (emphasis added) (footnote

omitted).

    In making this ruling, the District Court resolved no

factual disputes, instead taking the relevant facts from La

Russo’s complaint and applying New York’s strict legal standard

for section 208 insanity.   Our review is therefore de novo. See,

e.g., Achtman v. Kirby, McInerey & Squire, LLP, 464 F.3d 328, 337

(2d Cir. 2006).   Upon such review, we see no error.   Nearly all




                               -23-
of La Russo’s allegations concerning the scene at the hospital

recount deficient conditions of confinement, not De Lucia’s

insanity. The only allegation of his inability to function, that

he was “incoherent,” attributed this temporary difficulty to

excessive medication.     Furthermore, we see merit in the opinion

of then-District Judge Chin in Luciano v. City of New York, 684

F. Supp. 2d 417, 422 (S.D.N.Y 2010), which declined to apply an

insanity   toll   where   the   plaintiff’s   inability   to    function

persisted for only a day at the beginning of the limitations

period.    As the District Court here noted,

    [A]lthough not determinative of the issue, the fact
    that Plaintiff filed the summons on November 15, 2011,
    one day after the statute of limitations had run,
    suggests that the one-day lapse was due to mere
    oversight or mistake, rather than De Lucia's inability
    to “protect [his] legal rights because of an over-all
    inability to function in society.” McCarthy, 55 N.Y.2d
    at 548.

Dist. Ct. Op., 936 F. Supp. 2d at 300 n.6.

    The    District   Court     properly   determined     the    medical

malpractice claim to be untimely.

III. The Contract and Negligence Claims

    Finally, La Russo contends that her contract and negligence

claims are not barred because the statute of limitations period




                                  -24-
is longer for these causes of action and they are not duplicative

of her psychiatric malpractice claim.          We disagree, as did the

District Court.

    With regard to the contract claim, “[t]he law is clear that
a breach of contract claim arising out of the rendition of
medical services by a physician will withstand a test to its

legal sufficiency only where it is based upon an express special
promise to effect a cure or to accomplish some definite result.”

Monroe v. Long Island College Hospital, 84 A.D.2d 576, 576, 443
N.Y.S.2d 433, 434 (N.Y. App. Div. 2d Dep’t 1981). La Russo fails
to allege any such “special promise.”              The district court

correctly concluded that SGU Med.’s promotional and information

materials did not promise a specific course of treatment or

provide the basis for a breach of contract claim.          See Catapano

v. Winthrop University Hospital, 19 A.D.3d 355, 355, 796 N.Y.S.2d

158, 159 (N.Y. App. Div. 2d Dep’t 2005) (“[P]rovisions of the

‘Patients   Bill   of   Rights’   do   not   constitute   the   requisite
‘express promise’ or special agreement with the patient so as to

furnish the basis for a breach of contract claim.”).            As such,
La Russo’s contract claim is essentially a malpractice action and
like the psychiatric malpractice claim, it is time-barred.           See




                                  -25-
Hazel v. Montefiore Medical Center, 243 A.D.2d 344, 345, 663
N.Y.S.2d 165, 165 (N.Y. App. Div. 1st Dep’t 1997) (claims that

are “merely reformulations” of malpractice claims were properly

dismissed   as     time-barred    where      malpractice    claim       was    time-

barred).

     Similarly,      La    Russo’s    negligence       claim      is    merely     a

reformulation of her medical malpractice claim.                “When the duty

arises     from     the    physician-patient         relationship            or   is

substantially related to medical treatment, the breach gives rise

to   an   action    sounding     in   medical     malpractice,         not    simple

negligence.”       Stanley v. Lebetkin, 123 A.D.2d 854, 854, 507

N.Y.S.2d 468, 468 (N.Y. App. Div. 2d Dep’t 1986).                        La Russo

alleges that agents of SGU Med., including De Lucia’s faculty
advisor “negligently failed to use due care in the performance

of their duties” by failing to refer De Lucia to counseling or

medical    treatment      and   failing      to   provide   him    with       proper
psychiatric care and medical treatment.              These alleged failures

are substantially related to medical treatment and as such, are
duplicative of the medical malpractice claims.                     In sum, the

District Court’s rulings on La Russo’s contract and negligence
claims were correct.
                                  Conclusion
     The judgment of the District Court is affirmed.


                                      -26-
