Opinion
No. 93 Civ. 3848 (MOC) (HBP)
January 31, 2003
OPINION AND ORDER
I. Introduction
By an undated motion filed with the Court on August 15, 2002 (Docket Item 106), plaintiff moves for an order permitting her to amend her complaint for a second time to assert claims for violation of rights that plaintiff contends are protected by "substantive due process," tortious interference with custody, fraudulent concealment and the putative tort of "outrage." For the reasons set forth below, the motion is denied in part, denied in part without prejudice and granted in part.
II. Facts
A. Background
The alleged facts giving rise to this action are set forth at length in the opinion of the Honorable Miriam Goldman Cedarbaum, United States District Judge, dated March 31, 2000, granting in part and denying in part, defendants' motion to dismiss the amended complaint. Bruker v. City of New York, 92 F. Supp.2d 257 (S.D.N.Y. 2000). Familiarity with that opinion is assumed. The abbreviated summary of facts set forth below is based substantially on Judge Cedarbaum's opinion.
Plaintiff, who is proceeding pro se, seeks damages for the alleged misconduct of the defendants in connection with the placement of plaintiff's younger daughter, Elianne, in foster care in 1992. Elianne, and her older sister were removed from plaintiffs custody on June 8, 1992 by the Child Welfare Administration of the City of New York ("CWA"). Despite the fact that plaintiff is Jewish, the CWA placed Elianne in the care of the Catholic Home Bureau ("CHB") which placed Elianne in the home of Susan Savoca, a Catholic foster parent.
On June 12, 1992, the New York Family Court held a hearing to determine whether Elianne and her sister should be remanded to plaintiff's custody pending the conclusion of the neglect proceeding that CWA had commenced against plaintiff. Plaintiff prevailed at this hearing, and the CWA took an appeal. While the appeal was pending, CWA and plaintiff came to an agreement under which CWA agreed to withdraw its appeal and return Elianne's sister to plaintiff's custody in return for plaintiff's agreeing to place Elianne voluntarily in CWA's custody.
Thereafter, plaintiff alleges that she made numerous requests that Elianne be placed in a Jewish foster home that were ignored by CWA officials. In addition to CWA's failure to match the foster home provided for Elianne with plaintiff's religion, plaintiff also claims that the foster care provided by Savoca was deficient in several respects unrelated to religion.
On September 24, 1992, the Family Court held a hearing concerning plaintiff's objections to Elianne's placement in a home under the auspices of the CHB. Among other things, the Order resulting from this hearing directed that the CWA transfer the custody of Elianne from the CHB to a Jewish foster care agency. The Family Court's rulings were affirmed by the Appellate Division, First Department. In the Matter of Elianne M., 184 A.D.2d 98, 592 N.Y.S.2d 296 (1st Dept 1992).
After the Appellate Division's decision, Elianne ran away from Savoca's home to an undisclosed location. During this period, Elianne made several media appearances in which she complained about the treatment she had received from plaintiff and the fact she was being transferred against her will from Savoca's home.
Elianne was subsequently returned to Family Court pursuant to a warrant. Thereafter, the CWA transferred Elianne to the custody of OHEL, a Jewish foster care agency, for placement in a Jewish foster home. According to plaintiff, however, CWA entered into a "deal" with Elianne under which Elianne would attend a school close to Savoca's residence and would be permitted to visit Savoca and to spend the night at her home at will.
Elianne did not adjust well to placement in a foster home under OHEL's auspices, and on OHEL's recommendation, Elianne was admitted to Four Winds Hospital in June 1993 for psychiatric evaluation. Plaintiff alleges that she had an agreement with CWA under which it had agreed to abide by the recommendation of Four Winds Hospital and an educational consultant retained by plaintiff. Although Four Winds recommended that Elianne be remanded to plaintiff's custody, CWA refused to follow Four Winds' recommendation.
Elianne subsequently signed herself out of Four Winds and was placed by CWA with two Catholic foster care agencies — the Catholic Institution of Edwin Gould and Father Flannegan's Boystown of New York. The Family Court found plaintiff guilty of neglect on July 6, 1996, and entered an Order on September 28, 1996 directing that Elianne remain at Boystown until her eighteenth birthday. The Court denied plaintiff's request for visitation.
Plaintiff filed an appeal from the Family Court's finding of neglect. Despite two extensions, however, plaintiff failed to perfect her appeal in a timely manner, and it was dismissed sua sponte by the Appellate Division. In re Elianne M., 236 A.D.2d 897, 654 N.Y.S.2d 282 (1st Dep't 1997). The New York Court of Appeals subsequently denied leave to appeal. In re Elianne M., 90 N.Y.2d 803, 683 N.E.2d 1053, 661 N.Y.S.2d 179 (1997).
B. Plaintiff's Proposed Amendment
Although plaintiff's motion states that she seeks to add claims for violation of rights that plaintiff contends are protected by "substantive due process," tortious interference with custody, fraudulent concealment and the putative tort of "outrage," the Proposed Second Amended Complaint she has submitted with her motion details only her putative substantive due process claims. Neither plaintiff's Proposed Second Amended Complaint nor the papers submitted in support of plaintiff motion make any attempt to explain how plaintiff has alleged claims for tortious interference with custody, fraud or "outrage."
Plaintiff's putative substantive due process claims are based on plaintiff's discovery of the alleged "deal" between Elianne and CWA that permitted Elianne to visit Savoca at will after plaintiff had been placed in the custody of OHEL, plaintiff's contention that discovery has disclosed that CWA failed to stop Savoca from interfering with Elianne, and CWA's placement of Elianne with the Catholic Institution of Edwin Gould and Father Flannegan's Boystown of New York after the Appellate Division had ruled that Elianne should be placed in the custody of a Jewish foster care agency.
III. Analysis
A. Applicable Standard
The standards applicable to a motion to amend a pleading are well settled and require only brief review.
Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Dluhos v. Floating Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998); Gumer v. Shearson, Hammill Co., 516 F.2d 283, 287 (2d Cir. 1974) "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced [sic], or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997). Accord American Home Assur. Co. V. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997). The Court of Appeals has repeatedly noted that the trial court has "broad" discretion in ruling on a motion to amend. Local 802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). See generally Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000), cert. denied, 532 U.S. 923 (2001).
A proposed amendment is futile when it fails to state a claim. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Although Fed.R.Civ.P. 15(a) provides that leave to amend should be given freely when justice so requires, where, as here, there is no merit in the proposed amendments, leave to amend should be denied."); Mina Inv. Holdings Ltd. v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N.Y. 1999); Parker v. Sony Pictures Entm't, Inc., 19 F. Supp.2d 141, 156 (S.D.N.Y. 1998), aff'd in pertinent part, vacated in part on other grounds sub nom., Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000); Yaba v. Cadwalader, Wickersham Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996); Prudential Ins. Co. v. BMC Indus., Inc., 655 F. Supp. 710, 711 (S.D.N.Y. 1987) (Although leave to amend should be freely given, "it is inappropriate to grant leave when the amendment would not survive a motion to dismiss."). See generally Dluhos v. Floating Abandoned Vessel Known as "New York", supra, 162 F.3d at 69-70. "The Proposed Amended Complaint may therefore be scrutinized as if defendants' objections to the amendments constituted a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Journal Publ'g Co. v. American Home Assur. Co., 771 F. Supp. 632, 635 (S.D.N.Y. 1991).
Finally, since plaintiff is proceeding pro se and asserting civil rights claims, I have read her Proposed Second Amended Complaint leniently. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) Stewart v. United States Postal Serv., 649 F. Supp. 1531, 1535 (S.D.N.Y. 1986) (pro se papers alleging violations of civil liberties require an even greater liberal construction); accord Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
B. Proposed Substantive Due Process Claim
Turning first to plaintiff's proposed substantive due process claim, substantive due process "protects individual liberty against certain governmental actions regardless of the fairness of the procedures used to implement them." Interport Pilots Agency v. Sammis, 14 F.3d 133, 144 (2d Cir. 1994) (internal quotations and citations omitted). "Only the most egregious official conduct is prohibited by substantive due process." People United For Children, Inc. v. City of New York, 108 F. Supp.2d 275, 293 (S.D.N.Y. 2000) "Substantive due process protects against government action that is arbitrary, conscious-shocking, or oppressive in a constitutional sense, but not against government action that is `incorrect or ill-advised.'" Kaluczy v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995) quoting Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) "[W]here [a] provision of the Constitution 'provides an explicit textual source of constitutional protection," a court must assess a plaintiff's claims under that explicit provision and "not the more generalized notion of "substantive due process."'" Conn v. Gabbert, 526 U.S. 286, 293 (2d Cir. 1999), quoting Graham v. Connor, 490 U.S. 386, 395 (1989). Thus, to the extent plaintiff is alleging that defendants wrongfully failed to place her daughter in a Jewish foster home, her claim is for a violation of her right to the free exercise of religion, and those allegations will not give rise to a claim for violation of her substantive due process rights. See Bruker v. City of New York, supra, 92 F. Supp.2d at 267-68.
The Court of Appeals for the Second Circuit has suggested a three-part test for the analysis of substantive due process claims:
[W]e have generally relied on a three-step test to guide our consideration of substantive due process claims. See, e.g., Zablocki v. Redhail, 434 17.5. 374, 383, 98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978). First, we examine the nature of the interest at stake to discern whether it is a "fundamental right" within the Fourteenth Amendment's protection of liberty and property. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion). Second, we determine whether the state's action has significantly infringed that "fundamental right." See, e.g., Harris v. McRae, 448 U.S. 297, 314-15, 100 S.Ct. 2671, 2687, 65 L.Ed.2d 784 (1980) Third, we analyze whether an important state interest justifies the infringement. See, e.g., Zablocki v. Redhail, 434 U.S. at 388, 98 S.Ct. at 682.Joyner v. Dumpson, 712 F.2d 770, 777 (2d Cir. 1983); see also People United for Children, Inc. v. City of New York, supra, 108 F. Supp.2d at 293.
In this case, there can be no dispute that substantive due process protects "family integrity."
We have described the interest of a parent in the custody of his or her children as "a fundamental, constitutionally protected liberty interest." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996); see also Tenenbaum, 193 F.3d at 600 (observing that a family has, "in general terms, a substantive right under the Due Process Clause `to remain together without the coercive interference of the awesome power of the state'") (quoting Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)); Wilkinson v. Russell, 182 F.3d 89, 103 (2d Cir. 1999) ("It has long been settled in this Circuit `that a parent's interest in the custody of a child [is] a constitutionally protected liberty interest subject to due process protection.' (quoting Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir. 1992)) (alteration in original); Duchesne, 566 F.2d at 825 (describing right of family to remain together as "the most essential and basic aspect of family privacy")Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000). See also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the "companionship, care, custody and management of his or her children," and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association, "with the parent." (citations omitted)).
Although Elianne's placement in foster care for a period of four years is of sufficient duration to have had a substantial effect on the right to family integrity, compare Tenenbaum v. Williams, 193 F.3d 581, 601 (2d Cir. 1999) (the City's custody of daughter for a single afternoon "was not severe enough to constitute a violation of [parents'] substantive due-process rights") with Yuan v. Rivera, 48 F. Supp.2d 335, 347 (S.D.N.Y. 1999) (three months of foster care constitutes substantial interference with right of family integrity), Elianne's placement in foster care cannot fairly be characterized as "interference." As noted at page 2, above, the Family Court held a hearing and determined that plaintiff's daughters should be returned to plaintiff. In order to avoid an appeal of this decision, plaintiff and CWA entered into an agreement under which plaintiff's older daughter was returned to plaintiff but Elianne was voluntarily placed in the custody of CWA. As Judge Cedarbaum noted almost three years ago, plaintiff's consent to Elianne's removal precludes plaintiff from asserting a substantive due process challenge to defendants' removal of Elianne, Bruker v. City of New York, supra, 92 V. Supp.2d at 267-68, and precludes plaintiff from now claiming that the placement of Elianne in foster care was interference. Thus, with respect to the initial placement of Elianne in foster care, plaintiff has not, and cannot, allege substantial interference with family integrity by the state.
The Proposed Second Amended Complaint does not expressly allege that plaintiff consented to the placement of Elianne in foster care (see Proposed Second Amended Complaint ¶ 29) Nevertheless, I conclude that the fact of plaintiff's consent can be considered here notwithstanding the general rule that in assessing the futility of a proposed amended complaint, a court is generally limited to the factual information that could be considered on a motion to dismiss. See generally Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
On a 12(b)(6) motion, a court is ordinarily limited to consideration of the complaint itself, any exhibits attached to the complaint and documents that are "integral" to the claim. San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d Cir. 1996); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991); I. Meyer Pincus Assocs. v. Oppenheimer Co., 936 F.2d 759, 762 (2d Cir. 1991). Plaintiff's claim here is based in large part on the Family Court proceedings, and plaintiff's Proposed Second Amended Complaint refers frequently to the decisions of the Family Court, including a decision rendered by Justice Martinez on September 24, 1992 (Proposed Second Amended Complaint ¶ 33, 119-21). This decision has been submitted to me in connection with plaintiff's July 17, 2001 motion to compel discovery and provides, in pertinent part: "In July, 1992, on consent of CWA and Respondent, CWA withdrew its Appeal and the Respondent consented to the remand of the child Elianne to the Commissioner of Social Service." Since plaintiff expressly relies on this decision, I conclude that it is integral to the Proposed Second Amended Complaint and may properly be considered in assessing the futility of the proposed amendments.
Plaintiff's Proposed Second Amended Complaint may also be read as asserting a claim that defendants unreasonable prolonged the proceeding and thereby improperly interfered with plaintiff's "family integrity." There can be little doubt that the right to "family integrity" includes the right to be free from continued state interference with that integrity where the basis for the state's action is proven to lack validity; although credible charges of abuse may justify a social worker in taking a child out of the parent's custody for a reasonable medical exam, Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987); Yuan v. Rivera, supra, 48 F. Supp.2d at 344, the, social worker's continued custody of the child would clearly be improper if all the exam results were negative or established an innocent cause and there is no other relevant evidence. See Tenenbaum v. Williams, supra, 193 F.3d at 601 (suspicion of abuse, later proven to be erroneous, justified only "temporary separation" of child from her parents); Gottlieb v. County of Orange, supra, 84 F.3d at 518 ("Where . . . there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents'custody at least pending investigation."). In this case, however, the Proposed Second Amended Complaint admits that plaintiff was found guilty of neglect and that plaintiff's appeal from this determination was dismissed (see Proposed Second Amended Complaint ¶ 78, 80). Thus, again, there is no reason to revisit Judge Cedarbaum's conclusion that, to the extent plaintiff is asserting some type of constitutional claim based on delay, she is collaterally estopped by the results of the Family Court proceeding. Bruker v. City of New York, supra, 92 F. Supp.2d at 271. Moreover, any claim based on alleged delay in the Family Court proceedings would be asserting a violation of procedural due process, not substantive due process. See generally Kia P. v. McIntyre, 2 F. Supp.2d 281, 291-92 (E.D.N.Y. 1998), aff'd, 235 F.3d 749 (2d Cir. 2000).
I also note that the Court of Appeals has recently held that the Rooker-Feldman doctrine deprives a federal court, other than the United States Supreme Court on direct appeal, of subject matter jurisdiction to revisit issues actually decided by the Family Court. Phifer v. City of New York, 289 F.3d 49, 55-57 (2d Cir. 2002) (Rooker-Feldman doctrine precludes federal courts from hearing claims that attack Family Court decisions concerning custody, neglect and visitation).
Finally, although the nature of the putative substantive due process rights plaintiff is alleging is far from clear, plaintiff seems to be claiming that the defendants should be subjected to liability because they failed to take steps to stop Elianne from visiting Susan Savoca after Elianne had been removed from her custody, from meeting with an attorney in an effort to "divorce" plaintiff and from making statements in the media concerning her efforts to distance herself from plaintiff (see Proposed Second Amended Complaint ¶ 39, 40, 46, 48 50, 52) Although the state has an obligation to terminate any interference with family integrity when there is no reasonable basis for such interference, numerous authorities, including Judge Cedarbaum's March 2000 decision in this case, have held that the state has no substantive due process obligation to reunite families or promote family integrity where the state is not responsible for the disruption of family integrity. Bruker v. City of New York, supra, 92 V. Supp.2d at 271; Marisol A. v. Giuliani, 929 F. Supp. 662, 677 (S.D.N.Y. 1996); Dixey v. Jewish Child Care Ass'n, 522 F. Supp. 913, 916 (S.D.N.Y. 1981). To the extent plaintiff is alleging that defendants failed to intervene to reverse family disruption they did not cause, no substantive due process right has been violated.
C. Plaintiff's Other Proposed New Claims
Turning to plaintiff's motion to amend her complaint to assert claims for tortious interference with custody, fraudulent concealment and the putative tort of "outrage," plaintiff's motion is denied in part and denied in part without prejudice.
To the extent plaintiff is attempting to allege interference with custody, she is attempting to revisit the issues decided by the Family Court, and this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine to hear such claims. Phifer v. City of New York, supra, 289 F.3d at 55-57.
To the extent plaintiff is alleging fraud, she has failed to allege the elements of a claim of fraud with particularity and has failed to set forth the particular role played in the alleged fraud by each defendant. See generally Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999) (at a minimum under Rule 9(b), the plaintiff must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent."); Mills v. Polar Molecular Corp., 12 V.3d 1170, 1175 (2d Cir. 1993) (where multiple defendants are alleged to be responsible for a fraud, the role of each must be specified); DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987).
To the extent plaintiff is seeking to assert a claim for "outrage," her motion is also denied, but without prejudice to renewal. None of the authorities cited in the memorandum of law submitted by plaintiff recognize a tort of "outrage," and my own research has not disclosed any pertinent authorities recognizing such a tort. The closest recognized tort appears to be intentional infliction of emotional distress ("IIED") which has the following four elements: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996), citing Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350, 353 (1993).
The first element of this tort is "`difficult to satisfy.'" Howell v. New York Post Co., supra, 81 N.Y.2d at 122, 612 N.E.2d at 702, 596 N.Y.S.2d at 353, quoting Prosser Keeton, Torts § 12 at 60-61 (5th ed. 1984). "`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'". Murphy v. American Home Prods., Corp., 58 N.Y.2d 293, 303, 448 N.E.2d 86, 90, 461 N.Y.S.2d 232, 236 (1983), quoting Restatement (Second) of Torts, § 46, comment d. In addition, recovery under the theory of IIED may be had only where remedies under more traditional torts are unavailable. Moore v. City of New York, 219 F. Supp.2d 335, 339 (E.D.N.Y. 2002); Black v. Town of Harrison, 02 Civ. 2097 (RWS), 2002 WL 31002824 at *5 (S.D.N.Y. Sept. 5, 2002). Finally, the initial determination of whether the conduct alleged is sufficiently outrageous to state a claim is a question for the court to determine in the first instance. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).
The difficulty in trying to decipher whatever IIED claim plaintiff may be attempting to allege is that plaintiff does not specify what conduct she contends gives rise to an IIED claim. The Proposed Second Amended Complaint sets forth a wide range of conduct, some of which clearly cannot be the basis of an IIED claim. For example, to the extent plaintiff is complaining about the fact that her child was placed in foster care, both plaintiff's consent to the initial placement and the final decision of the Family Court prevent her from basing an IIED claim on this conduct. To the extent plaintiff seems to be alleging that defendants failed to stop her daughter and Susan Savoca from making comments in the press about the Family Court proceeding (see Proposed Second Amended Complaint ¶ 52), the First Amendment's protection of freedom of speech would appear to bar her claim. Third, to the extent plaintiff is alleging that defendants improperly failed to place her daughter in a foster home that conformed to plaintiff's religious preference, the availability of a Bivens remedy under the First Amendment would bar an IIED claim. On the other hand, if plaintiff is attempting to allege that the defendants intentionally engaged in "outrageous" conduct that had no possible justification and no purpose other than the creation or widening of an emotional rift between plaintiff and Elianne, the vitality of an IIED claim is a more difficult issue.
Given the murky nature of plaintiff's IIED claim (assuming that plaintiff is attempting to assert an IIED claim) and the inconsistencies in the reported decisions assessing IIED claims, see Bender v. City of New York, 78 F.3d 787, 790-91 (2d Cir. 1996), I believe the most prudent course is to deny this aspect of plaintiff's motion without prejudice to a renewed motion to assert an IIED claim that specifies the conduct that plaintiff contends gives rise to the claim. This course will ensure that plaintiff is given the most complete opportunity to state whatever claim she believes she may have and will eliminate the possible unfairness that might result from a decision based on guesswork.
D. Miscellaneous New Factual Allegations
Finally, plaintiff's Proposed Second Amended Complaint contains numerous new factual allegations, purportedly based on the fruits of discovery. Although, for the reasons stated above, I conclude that these new factual allegations do not state new claims, there is no reason why the complaint should not accurately reflect plaintiff's version of the facts. Accordingly, plaintiff's motion to amend is granted to the extent she seeks to make new factual allegations.
IV. Conclusion
Accordingly, for all the reasons set forth above, plaintiff's motion to amend her complaint to assert new claims is denied except to the extent plaintiff is asserting a claim for intentional infliction of emotional distress, and, in that regard, plaintiff's motion is denied without prejudice. To the extent plaintiff is attempting to amend her complaint to allege only additional facts, the motion is granted. Plaintiff shall serve and file her amended complaint setting forth her supplemental factual allegations no later than February 12, 2003.