         09-0682-cv
         Rettek v. Ellis Hospital, et al.



                          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 .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27 th day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROBERT D. SACK,
 9                PETER W. HALL,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       NORMA CUMMINGS RETTEK,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                         09-0682-cv
18
19       ELLIS HOSPITAL, LINDA BREAULT, as
20       Trustee of Ellis Hospital, MARK
21       BRESLIN, as Trustee of Ellis Hospital,
22       CHRISTINE CIOFFI, as Trustee of Ellis
23       Hospital, JAMES CONNOLLY, as Trustee
24       of Ellis Hospital, GARY EBELTOFT, as
25       Trustee of Ellis Hospital, HOWARD S.
26       FOOTE, as Trustee of Ellis Hospital,
27       D. JOSEPH GERSUK, as Trustee of Ellis
28       Hospital, MARSHALL G. JONES, as
29       Trustee of Ellis Hospital, PATRICK
 1   KEHOE, as Trustee of Ellis Hospital,
 2   ROBERT J. KENNEDY, as Trustee of Ellis
 3   Hospital, ROBERT LIEBERS, as Trustee
 4   of Ellis Hospital, JUDITH B. McILDUFF,
 5   as Trustee of Ellis Hospital, DEBORAH
 6   MULLANEY, as Trustee of Ellis
 7   Hospital, ROBERT F. MURRAY, as Trustee
 8   of Ellis Hospital, SARAH SCHERMERHORN,
 9   as Trustee of Ellis Hospital, PAUL
10   SCUDDER, as Trustee of Ellis Hospital,
11   RICHARD TOLL, as Trustee of Ellis
12   Hospital, VINCENT J. ZECCOLA, as
13   Trustee of Ellis Hospital, DOMINICK
14   BIZZARRO, as Trustee of Ellis
15   Hospital, ROBERT A. BREAULT, as
16   Trustee of Ellis Hospital, GREG W.
17   BROWN, as former Trustee of Ellis
18   Hospital, THOMAS D’ANDREA, as former
19   Trustee of Ellis Hospital, HARRY
20   DEPAN, as former Trustee of Ellis
21   Hospital, THOMAS DONOVAN, as former
22   Trustee of Ellis Hospital, JOHN FLYNN,
23   as former Trustee of Ellis Hospital,
24   FRANK HARTE, as former Trustee of
25   Ellis Hospital, DALE HEDMAN, as former
26   Trustee of Ellis Hospital, JOHN JASKI,
27   as former Trustee of Ellis Hospital,
28   NORA JASKI, as former Trustee of Ellis
29   Hospital, BONNIE McGUIRE JONES, as
30   former Trustee of Ellis Hospital,
31   WILLIAM J. KENNEALLY, as former
32   Trustee of Ellis Hospital, BARBARA C.
33   LAWRENCE, as former Trustee of Ellis
34   Hospital, SUE LEHRMAN, as former
35   Trustee of Ellis Hospital, MARK M.
36   LITTLE, as former Trustee of Ellis
37   Hospital, RICHARD LIPMAN, as former
38   Trustee of Ellis Hospital, HUGH J.
39   MURPHY, as former Trustee of Ellis
40   Hospital, JOAN R. PIPITO, as former
41   Trustee of Ellis Hospital, ZYGMOND
42   SLEZAK, as former Trustee of Ellis

                                  2
 1   Hospital, SUZANNE SMITH, as former
 2   Trustee of Ellis Hospital, JOHN
 3   VanDELOO, as former Trustee of Ellis
 4   Hospital, KIRBY VOSBURGH, as former
 5   Trustee of Ellis Hospital, CHARLES
 6   WILLIAMSEN, as former Trustee of Ellis
 7   Hospital, GARY WOOD, as former Trustee
 8   of Ellis Hospital, JAMES W. CONNOLLY,
 9   as President and Chief Executive
10   Officer of Ellis Hospital, ANDREW M.
11   CUOMO, as Attorney General of the
12   State of New York and JOHN DOES 1-30,
13
14            Defendants-Appellees.
15   - - - - - - - - - - - - - - - - - - - -X
16
17   APPEARING FOR APPELLANT:   Daniel L. Kurtz (Sarah E.
18                              McCallum, on the brief),
19                              Skadden, Arps, Slate, Meagher &
20                              Flom LLP, New York, NY.
21
22   APPEARING FOR APPELLEE     Diana R.H. Winters, Assistant
23   ANDREW M. CUOMO:           Solicitor General (Barbara D.
24                              Underwood, Solicitor General,
25                              and Benjamin N. Gutman, Deputy
26                              Solicitor General, on the
27                              brief), for Andrew M. Cuomo,
28                              Attorney General of the State of
29                              New York.
30
31   APPEARING FOR APPELLEES    Daniel J. Hurteau, Nixon Peabody
32   ELLIS HOSPITAL, ALL        LLP, Albany, NY.
33   CURRENT AND FORMER
34   TRUSTEES OF ELLIS
35   HOSPITAL AND JAMES
36   CONNOLLY, IN HIS
37   CAPACITY AS PRESIDENT
38   AND CHIEF EXECUTIVE
39   OFFICER OF ELLIS
40   HOSPITAL:
41
42        Appeal from a judgment of the United States District
43   Court for the Northern District of New York (Sharpe, J.).

                                  3
 1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 2   AND DECREED that the judgment of the district court be
 3   AFFIRMED.
 4
 5        Plaintiff-appellant Norma Cummings Rettek appeals from
 6   a final judgment of the United States District Court for the
 7   Northern District of New York (Sharpe, J.), which granted
 8   defendants-appellees’ motions to dismiss. We assume the
 9   parties’ familiarity with the underlying facts, the
10   procedural history, and the issues presented for review.
11
12        We review de novo the dismissal of a complaint pursuant
13   to Federal Rule of Civil Procedure 12(b)(6). See Spagnola
14   v. Chubb Corp., 574 F.3d 64, 67 (2d Cir. 2009). We accept
15   “all well-pled factual allegations as true and draw all
16   reasonable inferences in the plaintiff’s favor to decide
17   whether the plaintiff has pled a plausible claim for
18   relief.” Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937,
19   1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
20   544, 555 (2007))).
21
22        Having reviewed Rettek’s contentions on appeal and the
23   record of the proceedings below, we affirm for substantially
24   the reasons stated in the district court’s opinion. New
25   York law does not grant a plaintiff standing to enforce a
26   charitable gift restriction based solely on the plaintiff’s
27   familial relationship to the donor. The dispositive
28   distinction between this case and Smithers v. St. Luke’s-
29   Roosevelt Hospital Center, 281 A.D.2d 127, 128, 139, 140-41
30   (1st Dep’t 2001), is that Rettek is not the legal
31   representative of the donors’ estates. Accordingly, she
32   lacks standing to pursue this action and has no choice but
33   to rely on the Attorney General to enforce the gift
34   restrictions.
35
36        For two reasons, we decline to certify any question
37   related to Rettek’s standing to the New York Court of
38   Appeals. First, as discussed above, there is sufficient
39   clarity in New York law. See Doyle v. Am. Home Prods.
40   Corp., 583 F.3d 167, 172 (2d Cir. 2009) (“[C]ertification is
41   not necessary where precedent is clear and application of
42   law to fact requires no grand or novel pronouncements of New
43   York law.”). Second, the Court of Appeals has twice denied
44   leave to appeal in state cases that presented analogous

                                  4
 1   questions: Bd. of Educ. of Mamaroneck Union Free Sch. Dist.
 2   v. Att’y Gen., 25 A.D.3d 637 (2d Dep’t), leave denied, 7
 3   N.Y.3d 807 (2006), and In re Alaimo, 288 A.D.2d 916 (4th
 4   Dep’t 2001), leave denied, 97 N.Y.2d 609 (2002). Cf. Doyle,
 5   583 F.3d at 172 (declining to certify where “the state
 6   courts have already thrown this case out, revived it, and
 7   then thrown it out again . . . [thereby] express[ing] their
 8   desire to be rid of it (twice) and it would be an imposition
 9   on the state’s highest court for us to serve it up again”).
10
11        Accordingly, we hereby AFFIRM the judgment of the
12   district court.
13
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17




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