John COSENTINO, an incapacitated person, by and through his guardian, Anthony Cosentino, and co-guardian, Mary Ann Cosentino, Plaintiff-Appellant, v. State of NEW YORK OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Kathleen Broderick, in her official capacity as Associate Commissioner of the NYS Office of Mental Retardation and Developmental Disabilities, Thomas A. Maul, in his official capacity as commissioner of the NYS Office of Mental Retardation and Developmental Disabilities, Peter Uschakow, personally and in his official capacity as Director of the Brooklyn Developmental Disabilities Service Office, Suresh Arya, personally and as Deputy Director for Operations of the Brooklyn Developmental Disabilities Service Office, Dr. S. Delbrune, John Doe, Defendants-Appellees, 354 F. App'x 466

SUMMARY ORDER Plaintiff John Cosentino (“plaintiff’ or “Cosentino”), through his legal guardians and parents, Anthony and Mary Ann Cosentino, appeals from an August 15, 2008 order of the District Court granting in part the motion for

summary judgment of defendants Peter Uschakow, Suresh Arya, and Serge Delbrune (collectively “defendants”) with respect to plaintiffs only remaining claim for relief. Plaintiff also appeals from a February 19, 2009 judgment of the District Court granting defendants’ motion for

summary judgment with respect to the remaining portion of plaintiffs claim for relief. On appeal, plaintiff argues that the District Court erred when it determined that there were no material facts in dispute, thus allowing the Court to grant

summary judgment. We assume the parties’ familiarity with the facts and procedural history of this case. We review a district court’s decision to grant

summary judgment de novo, “drawing all factual inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008).

Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Upon independent review of the record, we cannot agree with the conclusion of the District Court that there was no genuine issue of material fact remaining with respect to the plaintiffs tenth claim of relief — the only claim of relief that remained after the District Court’s order of September 7, 2007 granting in part defendants’ first motion for

summary judgment. In its February 18, 2009 order addressing defendants’ third motion for

summary judgment, the District Court concluded that “[pjlaintiff has not shown that the alleged delay in extracting his tooth rises to the level of a constitutional violation.” Because there was no underlying constitutional violation, the District Court reasoned, plaintiffs claims against remaining defendants for supervisory liability under § 1983 cannot survive. Finally, the District Court reasoned that even if there were an underlying constitutional violation, there was “no genuine issue of material fact ... as to whether Defendants were personally involved in that deprivation.” SPA 13.

This assessment, however, misconstrues the tenth claim for relief. In the amended complaint, the tenth claim of relief alleges that the “willful disregard” for plaintiffs dental condition led to an exacerbation of his psychiatric conditions, which subsequently led, among other things, to the “needless [use of] chemical and physical restraints.” A 50. Denying the dental care was not the alleged constitutional violation; rather, the alleged violation was the frequent use of chemical and physical restraints that became necessary only because defendants failed to give plaintiff adequate dental care.

Moreover, the District Court erred in concluding that there was no genuine issue of material fact with respect to defendants’ possible liability. Specifically, the District Court concluded that “[because no reasonable jury could find that Dr. Delbrune[, the psychiatrist,] was not entitled to rely on the dentist’s judgment, Dr. Delbrune’s psychiatric treatment neither amounts to an underlying violation, nor supports a finding of supervisory liability.” SPA 14-15. A sworn declaration by a board-certified psychiatrist submitted with plaintiffs memorandum opposing defendants’ third motion for

summary judgment, however, states that “[t]he failure by Dr. Delbrune to read the progress notes and investigate the dental diagnosis was a substantial departure from minimum professional standards.” A 364. More specificalty, the declaration notes that Dr. Delbrune diagnosed plaintiff with “Intermittent Explosive Disorder.” Id. The declaration states that “[a]n aspect of this diagnosis is ruling out as a causal factor a general medical condition.” Id.

The declaration continues, “as a matter of good and accepted medical practice, the failure to act on the June 23 notation of the dental condition was a substantial departure from minimum professional standards.” Id. Because “the question of what the generally accepted [medical] standards [are] is a question of fact,” Rodriguez v. City of N.Y., 72 F.3d 1051, 1063 (2d Cir.1995), and there is a dispute as to what the minimum professional standard is and whether Dr. Delbrune’s behavior departed from that standard,

summary judgment is inappropriate in this circumstance. If Dr. Delbrune’s treatment did constitute a constitutional violation, then Dr. Delbrune’s supervisors — the other remaining defendants — may be liable under § 1983 for insufficient supervision. Because the District Court erred in concluding that, as a matter of law, Dr. Delbrune’s treatment was not a constitutional violation, the District Court also erred in concluding that Dr. Delbrune’s supervisors were not liable for that alleged constitutional violation.

Finally, if defendants did violate plaintiffs constitutional rights, these violations occurred intermittently from November 2002 to December 2003. We therefore conclude that the District Court erred in granting in part defendants’ second motion for

summary judgment and limiting plaintiffs claim for relief to any wrongdoing that occurred from June 23, 2003 to September 11, 2003. We intimate no views on whether Dr. Delbrune did deviate from minimum professional standards or, if he did deviate from minimum standards, whether that deviation rose to the level of a constitutional violation. Furthermore, we intimate no views on whether, if Dr. Delbrune’s deviation rose to the level of a constitutional violation, that deviation violated a constitutional right that was sufficiently established to survive defendants’ claims of qualified immunity.

We only conclude that there was a genuine issue of material fact as to what the minimum professional standards of psychiatric care are and whether Dr. Delbrune deviated from those standards — and accordingly, we conclude that the District Court erred in granting defendants’ motion for

summary judgment. CONCLUSION For the foregoing reasons, the August 2008 order and February 2009 judgment of the District Court are VACATED, and the cause is REMANDED to the District Court for further proceedings consistent with this order. We leave to the informed discretion of the District Court whether to allow further supervised discovery and additional briefing.