Pendleton v City of New York

[*1] Pendleton v City of New York 2006 NY Slip Op 50632(U) [11 Misc 3d 1080(A)] Decided on March 24, 2006 Supreme Court, Kings County Hinds-Radix, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2006
Supreme Court, Kings County

Kevin Pendleton, Plaintiff,

against

The City of New York, New York City Police Department and Det. Joseph Falcone,



10694/94

Sylvia Hinds-Radix, J.

Upon the foregoing papers, plaintiff Kevin Pendleton moves, pursuant to CPLR 3126, for an order striking the answer of defendants The City of New York, New York City Police Department and Det. Joseph Falcone or, alternatively, for an order, pursuant to CPLR 3124, compelling defendants to comply with all outstanding discovery. Defendants oppose the instant motion and cross-move for an order: (1) pursuant to GML 50-e and 50-i, dismissing plaintiff's first cause of action for false arrest and imprisonment; (2) pursuant to CPLR 3211(a)(5), dismissing plaintiff's fifth cause of action for violation of his civil and constitutional rights under 42 USC §1983 and for attorneys fees under 42 [*2]USC §1983; (3) pursuant to CPLR 603 and 4011, bifurcating plaintiff's 42 USC § 1983 claim for discovery and trial; (4) pursuant to CPLR 3126 dismissing plaintiff's complaint for failure to provide court-ordered discovery; and (5) pursuant to CPLR 3124, compelling certain discovery.

In the instant action, plaintiff seeks damages based upon claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent hiring, training, supervising and retention and the violation of his civil and constitutional rights. The action was commenced on April 4, 1994. Issue was joined by service of the defendants' answer on or about May 25, 1994. On February 2, 2005, plaintiff was granted leave by this court to file and serve an amended complaint and the amended complaint was filed and served on February 3, 2005.

The original complaint in this action avers that on August 31, 1991, plaintiff was "falsely, wrongly and illegally arrested" by a New York City police officer, Detective Joseph Falcone, and was "intentionally, wantonly and maliciously" prosecuted "as a common criminal." The complaint further alleges that on November 13, 1992, all criminal charges against plaintiff were dismissed. With regard to the negligent hiring and supervision claims alleged by plaintiff, the complaint states that defendants The City of New York and the New York City Police Department breached their duty to train,

discipline, supervise, promulgate and put into effect appropriate rules applicable to the duties, activities and behaviors of its police officers, including Detective Falcone. The original complaint does not contain any causes of action based upon the alleged violation of plaintiff's civil or constitutional rights by either the individual defendant, Detective Falcone, or by the municipal defendants.

The amended complaint contains the state law claims for false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress and negligent hiring, training, supervising and retaining which are identical to those pleaded in the original complaint, and also adds a cause of action alleging the violation of plaintiff's civil rights. Specifically, plaintiff avers that his alleged false arrest and malicious prosecution deprived him of "rights, privileges and immunities as guaranteed under the United States Constitution, Amendments One, Four, Five, and Fourteen, the New York State Constitution, the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988."

Plaintiff alleges that his civil and constitutional rights were violated as the result of an official policy or unofficial custom, including but not limited to, "policies and customs concerning the hiring, training, supervision, retention and discipline of the City's agents, servants and/or employees, and those involving the arrest, detention and prosecution of individuals, including and especially, those persons such as the [p]laintiff who are of African American ethic [sic] descent." Plaintiff also claims that the municipal defendants encouraged, approved and/or tolerated the use by police officers of excessive force and [*3]misconduct against civilians, especially those civilians of African American descent, and also encouraged, approved and/or tolerated subsequent attempts by the police officers and the New York City Police Department to conceal misconduct by failing to provide adequate training, supervision and discipline to the officers. Such failure of training is specifically alleged to include the failure to train police officers with regard to proper statutory and constitutional limits on the exercise of their authority. Plaintiff also alleges that the City has sanctioned the policy and practices identified in the complaint and, therefore, has been deliberately indifferent to the effect of such policy and practices upon the civil and constitutional rights of plaintiff.

Cross Motion to Dismiss

Defendants argue that plaintiff's first cause of action for false arrest and imprisonment should be dismissed because a notice of claim with regard to such cause of action was not filed within 90 days of accrual of said claim and plaintiff failed to move to file a late notice of claim before the relevant statute of limitations expired. Defendants also contend that plaintiff's fifth cause of action based upon the alleged violation of his civil rights should be dismissed as time barred because such claim was not alleged until almost ten years after the expiration of the relevant limitations period and such claim, therefore, does not "relate back" to the state law claims asserted in the original complaint.

Plaintiff appears to concede that his false arrest and imprisonment claim is time barred. However, he argues that because his civil rights claims are, in essence, based upon his underlying false imprisonment, malicious prosecution and negligent hiring, supervision and retention claims - causes of action which defendants had notice of pursuant to the original complaint - the "relation back" rule should apply and the civil rights claim should be deemed timely.[FN1]

As an initial matter, the court finds that plaintiff's claim for false arrest and imprisonment must be dismissed as untimely. It is well established that a claim for false arrest and imprisonment accrues upon the plaintiff's release from custody which, in this case, occurred on September 6, 1992 (see Jackson v New York City Police Department, 119 AD2d 551, 552 [1986]). Plaintiff, therefore, was obligated, pursuant to General Municipal Law 50-e(1)(a), to file a notice of claim with regard to this cause of action on [*4]or before December 8, 1992. He failed to do so, however, and did not file a notice of claim with regard to his false arrest and imprisonment causes of action until February 4, 1993, two months beyond the requisite deadline. Subsequently, as plaintiff acknowledges, the statute of limitations expired for said claim without the plaintiff moving for leave to file a late notice of claim. Accordingly, the court is without authority to allow plaintiff to file a late notice of claim, given that the relevant limitations period expired more than ten years ago (see Pierson v City of New York, 56 NY2d 950, 955-956 [1982]). As a result, the court is constrained to dismiss plaintiff's cause of action for false arrest and imprisonment.

With regard to plaintiff's civil rights claim against the municipal defendants, the court finds that such claim is also time barred. The statute of limitations for a cause of action pursuant to 42 USC § 1983 based upon alleged civil rights violations is three years (Owens v Okure, 488 US 235, 251-252 [1989]). Accordingly, the relevant limitations period for this claim also expired approximately ten years ago. Plaintiff's section 1983 claim, however, was not asserted until February 3, 2005, upon the filing and service of the amended complaint in this action. CPLR 203 (f) provides that "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences or series of transactions or occurrences, to be proved pursuant to the amended complaint." The court finds, however, that in the instant case, the original pleading did not give sufficient notice of the transactions and occurrences to be proved with regard to the section 1983 claims asserted against the municipal defendants to warrant the application by this court of the "relation back" rule to such claim.

It is well settled that in order to establish municipal liability for section 1983 claims, "a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy" (Ricciuti v New York City Transit Authority, 941 F2d 119, 122 [2d Cir 1991]). There is no respondeat superior liability for a municipality under section 1983 and, accordingly, the violation of plaintiff's civil rights by a municipal employee, without more, will not render the municipality liable for such violation (see Monell v Dep't of Social Services, 436 US 658, 694 [1978]; see also Ramos v City of New York, 285 AD2d 284, 302 [2001]). Moreover, " a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy'"(DeCarlo v Fry, 141 F3d 56, 61 [1998], quoting Ricciuti, 941 F2d at 123).

It is generally recognized that there are four situations in which a municipality can be held liable under section 1983: (1) an officially promulgated policy endorsed or ordered by the municipality; (2) a custom or practice that is so widespread that the municipality had either actual or constructive knowledge of it; (3) actions taken or decisions made by the municipal employee who, as a matter of state law, is responsible for establishing municipal policies with respect to the area in which the action is taken; or [*5](4) where the failure of the municipality to train its employees rises to the level of deliberate indifference to the constitutional rights of others (see Wahhab v City of New York, 386 F Supp 2d 277, 285 [2005]). In order to establish the existence of "deliberate indifference" on the part of a municipality, it is insufficient to merely plead a failure to train employees (see Dwares v City of New York, 985 F2d 94, 100 [2d Cir 1993]). Deliberate indifference can generally be inferred where it can be shown, "to a moral certainty," that employees will confront a given situation which presents the employee with a difficult choice of the sort that training or supervision will make less difficult and that the wrong choice will frequently result in the violation of a citizen's constitutional rights (see Walker v City of New York, 974 F2d 293, 297 [1992], cert denied 507 US 961 [1993]). In addition, a municipality will be deemed to have demonstrated deliberate indifference to constitutional rights where either "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need" (City of Canton, Ohio v Harris, 489 US 378, 390 [1989]) or where the municipality had notice of, but repeatedly failed to make any meaningful investigation into, charges that its employees were violating citizens' constitutional rights (see Ricciuti, 941 F2d at 123).

Here, the court finds that the occurrences and transactions upon which plaintiff predicates his section 1983 claims are demonstrably different than those pled in the original complaint. Plaintiff's original complaint averred that plaintiff was falsely arrested and maliciously prosecuted by Detective Falcone and that the City of New York and the New York City Police Department were negligent in hiring, supervising, training and retaining Falcone. The amended complaint states that the municipal defendants violated plaintiff's civil rights by maintaining a policy or custom of failing to train police officers, including Falcone, with regard to the proper constitutional and statutory limits of their authority and also encouraged, approved and/or tolerated misconduct by police officers with regard to their arrest and prosecution of individuals of African American descent. The amended complaint, therefore, does not merely allege the transactions and occurrences which formed the basis for plaintiff's original state claims, but instead asserts entirely new claims involving, inter alia, the policies and customs of the police department with regard to its training of police officers in the constitutional limitations on their authority and its treatment of arrests and prosecutions involving African Americans which resulted not only in state law torts, but also constitutional violations. Such allegations by necessity involve different transactions and occurrences than those alleged in the original complaint, which largely limits its pleadings to the salient facts involved in the alleged malicious prosecution of plaintiff and does not assert any claims with regard to the nature and operation of the policies or customs of the police department which allegedly resulted in the violation of plaintiff's constitutional rights, the activities of supervisors or policymakers with regard to such alleged policies or customs, or the level [*6]of knowledge or involvement of such policymakers or supervisors with regard to either the establishment or acquiescence to such policies or customs or the constitutional violations committed by Detective Falcone or other police officers.

Moreover, although the original complaint does contain allegations with regard to the allegedly negligent hiring, training, supervision and retention of Detective Falcone and other police officers, such allegations pertain to the municipal defendants alleged failure to discharge from employment those employees who are not "fit, suitable, properly trained or instructed" or those with "vicious propensities [and] emotional, physical, psychological and/or physiological characteristics [who are] unsuitable or unstable or contraindicated for such employment," as well as the municipal defendants' alleged failure to promulgate general, unspecified "appropriate" rules of conduct for its officers. Accordingly, the original complaint pleads facts which pertain, in effect, to the municipal defendants' alleged failure to, inter alia, ascertain Detective Falcone's purported propensity for misconduct and to train and monitor him appropriately. The amended complaint, however, is based upon allegations concerning the municipal defendants' failure to train police officers specifically with regard to constitutional limitations on police power and such defendants' knowledge of, and acquiescence to, widespread police misconduct toward African Americans, and other civilians in arrest and prosecution situations, leading to constitutional violations. The court finds, as a result, that the civil rights claim asserted against the municipal defendants in the amended complaint arised out of different transactions and occurrences than the causes of action contained in the original complaint and, therefore, because the original complaint did not give notice of the civil rights claim contained in the amended complaint, said claim cannot receive the benefit of the "relation back" rule. Accordingly, such claim is untimely and must be dismissed.[FN2]

To the extent plaintiff also asserts a civil rights claim pursuant to section 1983 as against Detective Falcone, as an individual acting in his official capacity, the court finds that such claim does relate back and shall, therefore, not be dismissed. Detective Falcone's alleged liability under section 1983 stems solely from the malicious prosecution claim asserted against him by plaintiff, given that plaintiff's false arrest and imprisonment claim has been dismissed. It is well established that "[s]ection 1983 . . . malicious prosecution claims rooted in the Fourth and Fourteenth Amendments are substantially the same as . . . malicious prosecution claims under New York state law, with the exception that § 1983 requires that the tortfeasor act under color of state law" (Davis v City of New York, 373 F Supp 2d 322, 328-329 [2005][internal quotation marks and citations omitted]; accord Raysor v Port Authority of New York and New Jersey, 768 F2d 34, 39 [*7][2d Cir 1985], cert denied 475 US 1027 [1986]). Moreover, "[t]he requirement of pleading an official policy or custom of a municipality through which a constitutional injury has been inflicted upon a plaintiff applies only to 42 USC § 1983 claims against a local government, and not to such claims against individual defendants in their official capacities" (Bosone v County of Suffolk, 274 AD2d 532, 534 [2000]). Since plaintiff pled his malicious prosecution claim in the original complaint, and was not required to plead the existence of an official policy or custom with regard to Detective Falcone's alleged violation of plaintiff's constitutional rights, the section 1983 claim contained within his amended complaint is deemed to "relate back" to the original complaint, rendering such claim timely. As a result, to the extent that defendants seek dismissal of such claim as time barred, that portion of defendants' cross motion to dismiss is denied. In addition, to the extent that federal civil rights claims against Detective Falcone based upon the alleged malicious prosecution of plaintiff is sufficiently factually related to the state malicious prosecution claim, and no prejudice will accrue from trying such claims together, the court also denies defendants' application for a bifurcated trial.

Discovery Motions

With regard to outstanding discovery in the instant action, plaintiff moves to strike defendants' answer or, alternatively, to compel the production of various items of discovery and defendants cross-move to strike plaintiff's complaint or compel discovery. As an initial matter, the motion and cross motion to strike are denied. "It is well settled that actions should be resolved on their merits wherever possible, and that the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious" (Jenkins v City of New York, 13 AD3d 342, 342 [2004]). The court does not find any evidence of conduct on the part of any of the parties to this action which would warrant the drastic sanction of striking a pleading. Concerning the parties' motion and cross motion to compel discovery, given that, pursuant to the instant decision, plaintiff's surviving claims are state law claims for malicious prosecution, intentional infliction of emotional distress and negligent hiring, supervision and retention and a federal claim stemming from plaintiff's alleged malicious prosecution, to the extent such claim can be sustained against Detective Falcone individually in his official capacity as a police officer, the court finds that an updated response from defendants with regard to the preliminary conference order dated April 25, 2004, as well as an updated response to plaintiff's notice of discovery and inspection, dated February 18, 2005, is warranted, particularly in light of defendants' assertion that they will "attempt to provide documents responsive to items No.1, 8, 9, 10, 13, 14, 15, 17, 18, 19, 20, 24, 25, 26, 27, 28, 29" and apparently have not objected to same.

Accordingly, plaintiff is directed to provide defendant with any and all authorizations necessary for the release of documents plaintiff seeks in his February 19, 2005 notice for discovery and inspection, or in any discovery orders issued to date, within [*8]30 days of the date of this order. Defendants shall provide an updated response to both the preliminary conference order and plaintiff's notice of discovery and inspection dated February 18, 2005 within 90 days of the date of this order. Such responses shall include any and all objections to the discovery requested by plaintiff, to the extent any objections exist. With regard to all discovery that is not specifically objected to, such discovery shall be produced to plaintiff at the same time the subject written discovery responses are served. To the extent any discovery which has been requested by plaintiff, and is not the subject of an objection, does not exist, is missing, or cannot otherwise be located or obtained, defendants shall provide an affidavit stating the status of such discovery and what efforts were made to obtain same.

In summary, defendants' cross motion to dismiss plaintiff's first and fifth causes of action is granted, with the exception of any civil rights claim asserted by plaintiff with regard to Detective Falcone based upon the alleged malicious prosecution of plaintiff by said defendant.

Defendants' and plaintiff's motion and cross motion with regard to outstanding discovery are resolved in accordance with the instant decision, as detailed above.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: Plaintiff also argues that defendants' cross motion to dismiss must fail because defendants' answer to the amended complaint was untimely and defendant failed to oppose the plaintiff's earlier motion to amend the complaint. The court notes that because, to date, plaintiff has not made a default motion with regard to the allegedly untimely answer, and proceeded to conduct discovery subsequent to service of the answer, such argument is unavailing. Likewise, the motion for leave to amend a complaint cannot be deemed to have afforded defendants a "full and fair opportunity," for purposes of res judicata, to adjudicate the issues raised by the instant motion to dismiss.

Footnote 2: The court notes that to the extent plaintiff also asserts a civil rights claim under the New York State Constitution, the original complaint failed to give notice of such claim as well.