     10-1469-cv
     Mandarino v. Mandarino et al.
                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 31st day of January, two thousand eleven.
 4
 5   PRESENT:           ROBERT D. SACK,
 6                      DEBRA ANN LIVINGSTON,
 7                                      Circuit Judges,
 8                      J. GARVAN MURTHA,
 9                                      District Judge.*
10
11
12   PATRICIA MANDARINO, as Personal Representative of the Estate of JAMES L.
13   MANDARINO, SR.,
14             Plaintiff-Appellant,
15
16            -v.-                                                            No. 10-1469-cv
17
18   JAMES MANDARINO, ALEXANDRA PAOLERCIO, JOHN DOES 1 THROUGH 5,
19            Defendants-Appellees.**
20
21
22                                      MICHAEL S. KIMM, Kimm Law Firm, Englewood, New Jersey, for
23                                      Plaintiff-Appellant.
24
25                                      SUZANNE M. HALBARDIER, Barry, McTiernan & Moore, New
26                                      York, New York, for Defendants-Appellees.


              *
            The Honorable J. Garvan Murtha, of the United States District Court for the District of
     Vermont, sitting by designation.
              **
                   The Clerk of the Court is directed to amend the official caption as set forth above.
 1           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3           Plaintiff-Appellant Patricia Mandarino (“Appellant”), as representative of the estate of James

 4   Mandarino, Sr. (“Mandarino Sr.”), appeals from a judgment of the United States District Court for

 5   the Southern District of New York (Gorenstein, M.J.), entered March 30, 2010, concluding that

 6   Appellant failed to demonstrate an entitlement to equitable tolling of the statute of limitations on

 7   account of the alleged mental incapacity of James Mandarino, Sr., and dismissing her complaint as

 8   time-barred. We assume the parties’ familiarity with the underlying facts, procedural history of the

 9   case, and issues on appeal.

10           First, Appellant contends that the district court erred in its finding that she did not make a

11   sufficient showing that Mandarino Sr. was mentally incapacitated between 1995 and 2002, such as

12   to merit equitable tolling of the statute of limitations. “We review a district court’s decision to deny

13   equitable tolling for abuse of discretion.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 81

14   (2d Cir. 2003). Moreover, “[i]n reviewing district court decisions for abuse of discretion, we review

15   the underlying factual findings for clear-error,” which “mandates that we defer to the district court’s

16   factual findings, particularly those involving credibility determinations.” Phx. Global Ventures, LLC

17   v. Phx. Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir. 2005). We are also mindful that “[w]here there

18   are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly

19   erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). On the record presented,

20   we locate no error in the district court’s well reasoned determination that Appellant was not entitled

21   to equitable tolling.

22           We assume, without deciding, that federal law governs the equitable tolling of Appellant’s


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 1   federal claims and New York state law governs the equitable tolling of Appellant’s New York state

 2   law claims, though Appellant’s claim of error fails under either standard. Under federal law,

 3   “[e]quitable tolling applies only in the rare and exceptional circumstance.” Bertin v. United States,

 4   478 F.3d 489, 494 n.3 (2d Cir. 2007) (internal quotation marks omitted). “As a general matter, a

 5   litigant seeking equitable tolling must establish two elements: ‘(1) that he has been pursuing his

 6   rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely

 7   filing.’” Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010) (quoting Lawrence v. Florida, 549

 8   U.S. 327, 336 (2007)). While mental disability can warrant equitable tolling of the statute of

 9   limitations in some circumstances, that determination “requires a highly case-specific inquiry.”

10   Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002) (internal quotation marks omitted).

11   Since “mental illnesses are as varied as physical illnesses,” we have held that a litigant seeking

12   equitable tolling cannot rely on “conclusory and vague claim[s],” and must proffer a “particularized

13   description of how h[is] condition adversely affected h[is] capacity to function generally or in

14   relationship to the pursuit of h[is] rights.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).

15           The district court acted well within its discretion in crediting the testimony of Gerard and

16   Joseph Mandarino, Mandarino Sr.’s brothers, two non-party witnesses with extensive interaction

17   with Mandarino Sr. during the relevant time period. Moreover, contrary to Appellant’s implication,

18   the court was not required to fully credit—or treat as dispositive—the testimony of the expert

19   witness. See Fisher v. Vassar Coll., 70 F.3d 1420, 1447 (2d Cir. 1995) (holding that a district court,

20   acting as finder of fact, is “under no obligation to accept the word of [an expert witness] simply

21   because []he ha[s] been qualified as an expert”). We note, further, that even if the district court fully

22   credited Dr. Goodman’s expert reports, those reports did not include any specific conclusion as to


                                                        3
 1   Mandarino Sr.’s mental functioning or ability to manage his affairs during the relevant time period.

 2   In addition, there is no basis in the record for determining that the district court’s decision to credit

 3   the testimony of some witnesses over others was clearly erroneous, or that it erred in its conclusion

 4   that Appellant had failed to make the “particularized” showing necessary to merit equitable tolling.

 5   Cf. Bolarinwa, 593 F.3d at 232 (holding, in the habeas context, that equitable tolling is justified only

 6   where a litigant can “demonstrate that her particular disability constituted an extraordinary

 7   circumstance severely impairing her ability to comply with the filing deadline, despite her diligent

 8   efforts to do so” (internal quotation marks omitted)). Accordingly, we cannot conclude that the

 9   district court abused its discretion in concluding that equitable tolling was not merited as to

10   Appellant’s federal claims.

11           The same reasoning leads to the conclusion that the court did not abuse its discretion in also

12   denying Appellant the benefit of equitable tolling as to the New York state law claims. Under § 208

13   of the New York Civil Practice Law and Rules, a plaintiff may be entitled to equitable tolling if that

14   person “is under a disability because of infancy or insanity at the time the cause of action accrues.”

15   N.Y. C.P.L.R. 208 (McKinney’s 2010). This tolling, however, is available “only [to] those

16   individuals who are unable to protect their legal rights because of an over-all inability to function

17   in society.” McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543, 548, 450 N.Y.S.2d 457 (1982);

18   see also Ferreira v. Maimonides Med.Ctr., 43 A.D.3d 856, 858, 841 N.Y.S.2d 678 (2d Dep’t 2007)

19   (same). On the record before us, there is no question that the evidence presented to the district court

20   fell far short of demonstrating that Mandarino Sr. suffered from an “over-all inability to function in

21   society”; to the contrary, the evidence demonstrated that, following his overdose, Mandarino Sr. sold

22   cars, remarried, and led an active social life. Accordingly, the district court did not abuse its


                                                        4
 1   discretion in refusing to equitably toll the statute of limitations as to Appellant’s state law claims.

 2           Finally, Appellant asserts that the district court erred in permitting Gerard and Joseph

 3   Mandarino to testify at the evidentiary hearing regarding equitable tolling, despite the fact that

 4   Defendants had amended the Joint Pretrial Order a full three and a half months prior to the hearing

 5   to include them as defense witnesses. Appellant advances this argument in less than a full page of

 6   her brief, without citation to a single supporting case or statute, and therefore we might properly

 7   consider the argument waived on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

 8   1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be

 9   addressed on appeal.”). Nevertheless, it is clear that the argument lacks merit.

10           We have held that Rule 16 of the Federal Rules of Civil Procedure “was not intended to

11   function as an inflexible straightjacket on the conduct of litigation . . . ; instead, it was intended to

12   insure the efficient resolution of cases and, most importantly, to minimize prejudicial surprise.”

13   Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir. 1989). Accordingly, “[d]istrict courts have

14   considerable discretion in the management of trials, [which] necessarily includes a certain amount

15   of latitude to deviate from the terms of [a] pretrial order,” Manley v. AmBase Corp., 337 F.3d 237,

16   249 (2d Cir. 2003), and we will not locate error in such a deviation absent “serious prejudice” to the

17   complaining party, Cross & Cross Props., Ltd. v. Everett Allied Co., 886 F.2d 497, 503 (2d Cir.

18   1989). This is not a case in which Appellant was presented with proposed defense witnesses on the

19   eve of trial; to the contrary, the district court permitted the Defendants’ amendment of the pretrial

20   order more than three and a half months prior to the hearing, and there is simply no evidence in the

21   record that Appellant lacked notice of the testimony, was unable to depose Gerard or Joseph

22   Mandarino, or was in any manner prejudiced by the court’s decision to permit them to testify.


                                                        5
 1   Accordingly, the district court did not abuse its discretion in this regard.

 2          We are aware that Appellant moved this Court for oral argument in this case on January 27,

 3   2011, the day prior to the date on which the case was scheduled to be submitted to this panel.

 4   Neither party, however, appears to have previously requested oral argument as required by this

 5   Court’s rules. See Second Circuit Local Rule 34.1 (“Failure to timely file the Oral Argument

 6   Statement Form [required by this Rule] signifies that the party does not seek oral argument.”). In

 7   any event, the motion is now moot.

 8          We have considered all of Appellant’s remaining arguments and find them to be without

 9   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

10
11                                                          FOR THE COURT:
12                                                          Catherine O’Hagan Wolfe, Clerk
13
14




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