09-0445-cv
Rivera v. Smith

                          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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 29th day of April, two thousand and ten.

PRESENT:

       JOSÉ A. CABRANES,
       RICHARD C. WESLEY ,
              Circuit Judges.*

-------------------------------------------x

ROBERTO RIVERA, M.D.,

                       Plaintiff-Appellant,

       v.                                                            No. 09-0445-cv

RUTH E. SMITH , M.D., individually and as Director of
Personnel Health Service, St. Vincent’s Hospital, Manhattan;
JESS A. BUNSHAFT, ESQ ., individually and as former Director of
Human Resources, St. Vincent’s Hospital, Manhattan; SAINT
VINCENT’S HOSPITAL , MANHATTAN ; ST. VINCENT’S
CATHOLIC MEDICAL CENTERS—NY,

                       Defendants-Appellees.


       *
         The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel
hearing this appeal, was unable to participate. The appeal has been decided by the remaining two
members of the panel, who are in agreement. See 2d Cir. Local Rules, Internal Operating Procedure
E(b).

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FOR APPELLANTS:                                      Roberto Rivera, pro se, Yonkers, NY.

FOR APPELLEE:                                        Andrew L. Zwerling and Robert A. Del Giorno, Garfunkel,
                                                     Wild & Travis, P.C., Great Neck, New York; Ricki E. Roer and
                                                     Nancy V. Wright, Wilson Elser Moskowitz Edelman & Dicker,
                                                     LLP, New York, New York.

        Appeal from a January 30, 2009 judgment of the United States District Court for the Southern
District of New York (Barbara S. Jones, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s judgment is AFFIRMED.

         Appellant Roberto Rivera, pro se, appeals a judgment of the District Court entered after the
Court (1) granted summary judgment to defendants with respect to Rivera’s claim under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112-12117, (2) dismissed Rivera’s state
law claims for employment discrimination and breach of contract, (3) dismissed Rivera’s state law
claims for negligent misrepresentation and wrongful termination, and (4) denied Rivera’s request for
the production of certain medical records. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

         We review orders granting summary judgment de novo and ask whether the district court
properly concluded that there was no genuine issue as to any material fact and that the moving party
was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abrams, L.L.P., 321 F.3d 292,
300 (2d Cir. 2003). In determining whether there are genuine issues of material fact, we are
“required to resolve all ambiguities and draw all permissible inferences in favor of the party against
whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (quotation
marks omitted). Similarly, we conduct a de novo review of a district court’s dismissal of a complaint
under Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Finally, we review discovery rulings made by the
District Court under the “abuse of discretion” standard. See Indep. Order of Foresters v. Donald, Lufkin
& Jenrette, Inc., 157 F.3d 933, 937 (2d Cir. 1998). We will reverse such a ruling only if “the action
taken was improvident and affected the substantial rights of the parties.” Goetz v. Crosson, 41 F.3d
800, 805 (2d Cir. 1994); see also Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (“A district
court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2) made
a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located
within the range of permissible decisions.” (quotation marks omitted)).



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        Here, even construing, as we must, all the facts in Rivera’s favor, we conclude that the
District Court properly granted summary judgment to defendants with respect to Rivera’s ADA
claim. We also conclude that the District Court correctly dismissed his state law claims.
Additionally, we hold that the District Court did not abuse its discretion by denying Rivera’s request
that the defendants produce the three medical charts, as Rivera failed to demonstrate that those
charts were relevant to his claims.

        We have considered all of Rivera’s arguments on appeal and have concluded that they are
meritless.1

                                          CONCLUSION

       For the foregoing reasons, the District Court’s January 30, 2009 judgment is AFFIRMED.




                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




       1
         Rivera also moved for a preliminary injunction barring defendants from conducting “any
professional witness hearings or determinations” during the pendency of this litigation. Because we
affirm the District Court’s judgment for defendants, Rivera’s motion for a preliminary injunction is
moot.
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