Defendants County of Westchester, Joseph Stancari, Officer [*748] Savino, and Sergeant Rushin move for an order: 1) pursuant to CPLR 3212, granting summary judgment in favor of the County of Westchester dismissing the complaint and all claims asserted under 42 U.S.C. Section 1983 on the ground that the County did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process rights; 2) pursuant to CPLR 3212, granting summary judgment in favor of defendant Joseph Stancari dismissing the complaint and all claims asserted under 42 U.S.C. Section 1983 on the ground that plaintiff failed to prove any personal involvement on the part of Joseph Stancari; 3) pursuant to CPLR 3212, granting summary judgment in favor of defendant Officer Savino dismissing the complaint and all claims asserted under 42 U.S.C. Section 1983 on the [**839] ground that Officer Savino did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process fights; and 4) pursuant to CPLR 3212, granting summary judgment in favor of defendant Sergeant Rushin dismissing the complaint and all claims asserted under 42 U.S.C. Section 1983 on the ground that Sergeant Rushin did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process rights.

Plaintiff cross-moves for an order: 1) deeming the plaintiff's notice of claim alleging state law causes of action for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., which was served on the County of Westchester on August 7, 1998, as having been filed timely, nunc pro tunc, pursuant to General Municipal Law Section 50-e(5); and 2) granting the plaintiff leave, pursuant to CPLR 3025(b), to file and serve an amended verified complaint alleging state law claims of negligence as against the defendant, County of Westchester, for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., and alleging more specific facts pertaining to the claims brought pursuant to 42 U.S.C. Section 1983.

It is hereby ordered that: 1) defendants County of Westchester, Joseph Stancari, Officer Savino, and Sergeant Rushin's motion for summary judgment dismissing the complaint against them is granted; 2) plaintiff's cross-motion is granted to the extent that the portion of plaintiff's notice of claim served on August 7, 1998 which alleges wrongful death is deemed to have been filed timely; and 3) plaintiff is granted leave, pursuant to CPLR 3025(b), to file and serve within thirty (30) days after entry of the instant order an amended verified complaint alleging a claim against defendant County of Westchester for wrongful death and alleging "that at least thirty days have elapsed since the service of a notice [of claim] and that adjustment [*749] or payment thereof has been neglected or refused." (General Municipal Law Section 50-i.)

The instant action arises out of the suicide death of a seventeen year old male, decedent Ivan Figeroa, Jr., while he was a pretrial detainee at the Westchester County Jail in Valhalla, New York. Plaintiff asserts claims, pursuant to 42 U.S.C. Section 1983, that defendants violated Ivan Figeroa, Jr.'s Fourteenth Amendment Constitutional rights. Therefore, "in this case it is [Ivan Figeroa, Jr.]'s due process rights with which we are concerned. He was a pretrial detainee, not found guilty of a crime, and therefore he could not be 'punished.' For that reason, his treatment in the detention facility is analyzed under the Due Process Clause, rather than the Eighth Amendment's prohibition against cruel and unusual punishments." ( Frake v. City of Chicago, 210 F.3d 779 (7th Cir. 2000) citing Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).) "But like the protection afforded a convicted prisoner under the Eighth Amendment, a detainee is protected [under the Fourteenth Amendment] from the 'deliberate indifference' of officials ( County of Sacramento v. Lewis, 523 U.S. 833, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998); Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996). Specifically, when the claim is based on a jail suicide... the protection a detainee receives is the same as that received by an inmate claiming inadequate medical attention under the Eighth Amendment." ( Frake v. City of Chicago, 210 F.3d 779 (7th Cir. 2000) citing Mathis v. Fairman, 120 F.3d 88 (7th Cir. 1997); Payne for Hicks v. Churchich, 161 F.3d 1030 (7th Cir. 1998), cert. denied, 527 U.S. 1004, 144 L. Ed. 2d 236, 119 S. Ct. 2339 (1999).) It is well settled that "prison inmates have a... right to be confined under conditions that provide 'adequate food, clothing, shelter, [**840] and medical care.'" ( Estate of Novack v. County of Wood, 226 F.3d 525 (7th Cir. 2000) citing Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) and quoting Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).) "In addition, prison officials are responsible for taking reasonable steps to guarantee the safety of the inmates in their charge. To make out a claim for a violation of an inmate's... right to adequate conditions of confinement, a plaintiff must make two showings: 'First, the danger to the inmate must be objectively serious, posing a substantial risk of serious harm. Second, the prison official must have a sufficiently culpable state of mind - one of 'deliberate indifference' to inmate health or safety.'" ( Estate of Novack v. County of Wood, 226 F.3d 525, 529 quoting Haley v. Gross, 86 F.3d 630, 640-41 (7th Cir. 1996) and citing Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994).)

"'Deliberate indifference,' as it is used in the [Fourteenth] Amendment context, comprehends more than mere negligence [*750] but less than the purposeful or knowing infliction of harm." (Id. citing Farmer, 511 U.S. at 836; Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); and Haley, 86 F.3d at 641.) The deliberate indifference standard "requires that a prison official know of and disregard a substantial risk of serious harm to inmate health or safety." ( Estate of Novack v. County of Wood, 226 F.3d 525, 529 citing Farmer, 511 U.S. at 837; see also, McClemoore v. Dingman, 229 F.3d 1135 (2d Cir. October 6, 2000) quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).) "The deliberate indifference standard is a subjective one. It is not enough that there was a danger of which a prison official objectively should have been aware. 'The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" (Id.; see also, Starcher v. Correctional Medical Systems, Inc., 2001 U.S. App. LEXIS 5394, 2001 WL 345810 (6th Cir. March 26, 2001).)

In the instant matter there is no evidence that any of the defendant officials were "aware of facts from which the inference could be drawn that" decedent Ivan Figeroa, Jr. was a substantial suicide risk or that any defendant official drew such an inference. The Court notes that "mere knowledge that an inmate is behaving violently or 'acting in a "freaky manner"' is not sufficient to impute awareness of a substantial risk of suicide." ( Estate of Novack v. County of Wood, 226 F.3d 525, 529 quoting State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983) and citing Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997). Rather, "in order to be liable under the [Fourteenth] Amendment, a prison official must be cognizant of the significant likelihood that an inmate may imminently seek to take his own life and must fail to take reasonable steps to prevent the inmate from performing this act. See Collignon v. Milwaukee County, 163 F.3d 982, 990 (holding that even placing an inmate on suicide watch may not demonstrate a subjective awareness of a substantial risk of imminent suicide)." ( Estate of Novack v. County of Wood, 226 F.3d 525, 529-530.)

Plaintiff argues that the defendant officials should have been aware that decedent Ivan Figeroa, Jr. was a suicide risk. However, "ordinarily, a prison official does not violate the [Fourteenth] Amendment when he should have been aware of a risk that harm would befall an inmate but was not actually subjectively aware of that risk. See Farmer, 511 U.S. at 838[*751] * * * ('An official's failure to alleviate a significant risk that he should have perceived but did not, while no [**841] cause for commendation, cannot under our cases be condemned...')" ( Estate of Novack v. County of Wood, 226 F.3d 525 at 530.) Simply put, "mere negligence is insufficient to establish a [Fourteenth] Amendment claim." ( Starcher v. Correctional Medical Systems, Inc., 2001 U.S. App. LEXIS 5394, 2001 WL 345810 (6th Cir. March 26, 2001) citing Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997).) Further, "for liability to attach against [defendant Westchester] County under Section 1983, the plaintiff must show that 'deliberate' action attributable to the municipality directly caused a deprivation of federal rights.'" ( Starcher v. Correctional Medical Systems, Inc., 2001 U.S. App. LEXIS 5394, 2001 WL 345810 (6th Cir. March 26, 2001) quoting Board of County Commissioners v. Brown, 520 U.S. 397, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997).) The plaintiff has failed to "show that county policymakers made a 'deliberate choice' among various alternatives and that the policy caused the injury" to decedent Ivan Figeroa, Jr. (Id. quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986).) Accordingly, defendants County of Westchester, Joseph Stancari, Officer Savino, and Sergeant Rushin's motion for summary judgment dismissing the 42 U.S.C. Section 1983 claims against them must be granted.

Plaintiff cross-moves for an order: 1) deeming the plaintiff's notice of claim alleging state law causes of action for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., served on the County of Westchester on August 7, 1998, as having been filed timely, nunc pro tunc, pursuant to General Municipal Law Section 50-e(5); and 2) granting the plaintiff leave, pursuant to CPLR 3025(b), to file and serve an amended verified complaint alleging state law claims of negligence as against the defendant, County of Westchester, for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., and alleging more specific facts pertaining to the claims brought pursuant to 42 U.S.C. Section 1983. With respect to this cross-motion the defendant County of Westchester argues that the expiration of the Statute of Limitations bars the granting of such relief. However, it is well settled that where a decedent is survived only by infant distributees, " CPLR 208 tolls the Statute of Limitations for the wrongful death action until the 'earliest moment there is a personal representative or a potential personal representative who can bring the action, whether by appointment of a [*752] guardian or majority of the distributee, whichever occurs first'." ( Henry v. City of New York, 94 N.Y.2d 275, 283, 94 N.Y.S.2d 275, 724 N.E.2d 372 (1999) quoting Hernandez v. New York City Health & Hospitals Corp., 78 N.Y.2d 687, 693, 578 N.Y.S.2d 510, 585 N.E.2d 822 (1991); see also, Matter of Rivera v. Westchester County Medical Center, 222 A.D.2d 680, 635 N.Y.S.2d 677 (2nd Dept., 1995); Matter of Hidalgo v. New York City Health & Hospitals Corp., 210 A.D.2d 481, 620 N.Y.S.2d 471 (2nd Dept., 1994);  and Kemp v. City of New York, 208 A.D.2d 684, 617 N.Y.S.2d 801 (2nd Dept., 1994).)

In the case at bar, letters of guardianship were issued to the claimant on April 20, 1998, letters of administration were issued on June 25, 1998, and a notice of claim was served on defendant County of Westchester on August 7, 1998. Since the Statute of Limitations for a wrongful death action "was tolled until [April 20, 1998], the date of the issuance of letters of guardianship," the notice of claim was served within the two (2) year Statute of Limitations period for wrongful death actions. ( Matter of Rivera v. Westchester County Medical Center, 222 A.D.2d 680, 681, 635 N.Y.S.2d 677 (2nd Dept., 1995); see also, General Municipal Law Section 50-i.) Accordingly, contrary to the argument [**842]of defendant County of Westchester, this Court does have the authority to deem plaintiff's notice of claim to have been timely served with respect to the wrongful death claim. However, "unlike a cause of action to recover damages for wrongful death, which is brought exclusively for the benefit of the decedent's distributees, 'a cause of action brought on behalf of the deceased to recover damages for personal injuries suffered by the deceased is personal to the deceased'." ( Matter of Hidalgo v. New York City Health & Hospitals Corp., 210 A.D.2d 481, 482, 620 N.Y.S.2d 471 (2nd Dept., 1994) quoting Kemp v. City of New York, 208 A.D.2d 684, 686, 617 N.Y.S.2d 801 relying upon Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 609, 407 N.Y.S.2d 458, 378 N.E.2d 1027; see also, Hernandez v. New York City Health & Hospitals Corp., 78 N.Y.2d 687, 693, 578 N.Y.S.2d 510, 585 N.E.2d 822.) "Accordingly, CPLR 208 is not applicable to the decedent [Ivan Figeroa, Jr.]'s conscious pain and suffering claim and such claim is barred by the applicable Statute of Limitations." (Id.) It is undisputed that defendant County of Westchester "acquired actual knowledge of the essential facts constituting the [wrongful death] claim" within ninety (90) days after the claim arose. (General Municipal Law Section 50-e(5); see Makris v. Westchester County, 208 A.D.2d 843, 618 N.Y.S.2d 67 (2nd Dept., 1994) citing Matter of Tomlinson v. New York City Health & Hospitals Corp., 190 A.D.2d 806, 593 N.Y.S.2d 565 (2nd Dept., 1993) and Matter of Kurz v. New York City Health & Hospitals Corp., 174 A.D.2d 671, 571 N.Y.S.2d 533 (2nd Dept., 1991.) Further, service of the notice of claim "was made within the appropriate limitation period, as tolled by [*753] [Suliet's] infancy." ( Matter of Tomlinson v. New York City Health & Hospitals Corp., 190 A.D.2d 806, 807, 593 N.Y.S.2d 565.) In addition, any delay in filing the notice of claim has not "substantially prejudiced the public corporation in maintaining its defense on the merits." (General Municipal Law Section 50-e(5).)

Finally, pursuant to CPLR 3025(b), "A party may amend his pleadings... at any time by leave of court... Leave shall be freely given..." Defendant County of Westchester has failed to demonstrate "significant prejudice" which would serve to justify denial of plaintiff's application for leave to file and serve an amended verified complaint alleging a wrongful death claim against defendant County of Westchester. ( Edenwald Contracting v. City of New York, 60 N.Y.2d 957, 958, 471 N.Y.S.2d 55, 459 N.E.2d 164 (1983).) Accordingly, plaintiff's application must be granted. Plaintiff is granted leave to file and serve within thirty (30) days after entry of the instant order an amended verified complaint alleging a claim against defendant County of Westchester for wrongful death and alleging "that at least thirty days have elapsed since the service of notice [of claim] and that adjustment or payment thereof has been neglected or refused." (General Municipal Law Section 50-i.) Dated: June 6, 2001

White Plains, N.Y.

HON. ORAZIO R. BELLANTONI

Supreme Court Justice