Clifford v DeCurtis

[*1] Clifford v DeCurtis 2008 NY Slip Op 52593(U) [22 Misc 3d 1103(A)] Decided on December 19, 2008 Supreme Court, New York County Madden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2008
Supreme Court, New York County

John A. Clifford, Plaintiff,

against

Donna DeCurtis, STANLEY STEVENS, LOUIS JACOBS, LONG ISLAND RAILROAD (LIRR) Brakeman ROBERT CARLOVICH Badge No. 51086 individually and in his official capacity, METROPOLITAN TRANSPORTATION AUTHORITY POLICE DEPARTMENT (MTAPD) Detective CARLOS CINTRON Shield # 1025, Individually and in his official capacity, The LONG ISLAND RAILROAD d/b/a MTA LONG ISLAND RAILROAD, and the METROPOLITAN TRANSPORTATION AUTHORITY POLICE DEPARTMENT (MTAPD), Defendants.



113425/07

Joan A. Madden, J.

Defendant The Long Island Rail Road Company (LIRR) moves (1) pursuant to CPLR 306-b and 3211 (a) (5), for dismissal of the claims against it based upon the failure of plaintiff John Clifford, who is pro se, to timely serve LIRR within the statutory period, and (2) pursuant to CPLR 3211 (a) (8) (lack of jurisdiction) based on plaintiff's failure to serve LIRR with the summons and complaint (motion seq. no. 001)

Defendant Louis Jacobs cross-moves (1) pursuant to CPLR 3211 and 3016, dismissing the claims against him on the grounds of failure to state a cause of action and a defense founded upon documentary evidence, and (2) pursuant to CPLR 8303-a, for sanctions for commencing a frivolous action.

Defendants LIRR, Metropolitan Transportation Authority Police Department (MTAPD), Robert Carlovich, and Carlos Cintron (collectively, MTA defendants) move, pursuant to CPLR 3211 (a) (1), (2), (5), and (7), for dismissal of the claims against them (motion sequence no. 002).

Defendant Donna DeCurtis moves (1) for dismissal of the claims against her (a) pursuant to CPLR 3211 (a) (7), on the ground of failure to state a cause of action, and (b) pursuant to CPLR 3016 (a), for failing to meet the statutory pleading requirements, and (2) pursuant to CPLR [*2]8303-a, for sanctions for commencing a frivolous action (motion sequence no. 003).

Defendant Stanley Stevens moves (1) pursuant to CPLR 3211 (a) (7), for dismissal of the claim against him for failure to state a cause of action, and (2) for an award of sanctions against plaintiff (motion sequence no. 004).[FN1]

Background

In connection with the above motions, plaintiff submitted a proposed first verified amended complaint, and the parties stipulated to deem it as a motion to amend the complaint. As per the stipulation, Stevens, the MTA defendants, and DeCurtis submitted papers responding to the stipulated motion to amend the complaint, and plaintiff submitted a reply affidavit. Thus, the motions to dismiss the complaint are now directed to the proposed amended complaint.

The proposed amended complaint alleges as follows: on October 5, 2006, plaintiff boarded the 8:03 a.m. train at the Long Beach, Long Island Station, heading to Penn Station. Plaintiff sat in the aisle seat of the "five seater" in the rear of the last car (Proposed Amended Complaint, ¶ 11). Shortly thereafter, defendant DeCurtis, and later Stevens, boarded the train and sat in the "four seater" directly across the aisle from plaintiff. On previous occasions, DeCurtis "had words" with plaintiff because of her refusal to "modulate" her loud talking, as did Stevens because of his "loud talking and rude behavior" (id., ¶¶ 15, 20). Eventually two other friends of DeCurtis sat near her, and thus all four seats of the four seater opposite plaintiff were filled (id., ¶ 30). At another stop, a fifth "member of the Clique" boarded the train, took Stevens's seat, who then sat in the five seater across from plaintiff (id., ¶¶ 31, 32).

Stevens began talking in a loud voice and, after an argument, plaintiff called for the brakeman (defendant Robert Carlovich) and asked him to call the police because plaintiff intended to have Stevens arrested for harassment (id., ¶ 38). Brakeman Carlovich called to another brakeman on the intercom and told him that the "regulars" (i.e., DeCurtis, Stevens, and Jacobs) were having trouble with a "pain in the ass" and that he needed him to come to the rear of the train (id., ¶ 42). The entire train heard what Carlovich said because he had the public address switch thrown, and they laughed and plaintiff felt humiliated (id., ¶¶ 41-42).

When the train arrived at Lynbrook, the brakeman/ticket puncher came to the rear of the train, and plaintiff also told him that he was making a civilian arrest, and that he wanted the police to meet them at Penn Station (id., ¶ 43). The second brakeman told plaintiff that it appeared to him that plaintiff was the cause of the problem and that if plaintiff did not stop talking so loudly, he was "going to lock plaintiff up" (id., ¶ 44). Plaintiff told the second brakeman that if he interfered with plaintiff's civilian arrest, it was at his "peril" (id., ¶ 45). On the trip into Jamaica, they continued to talk loudly and plaintiff became angry enough to tell DeCurtis that if she "didn't knock it off," plaintiff would report her illegal tenant to the building department (id., ¶ 46).

When the train stopped at Jamaica station, MTAPD police officer Aurisano arrested plaintiff, on the complaint of Carlovich (id., ¶ 56). Plaintiff was handcuffed and "perp walked" to the Metropolitan Transit Authority (MTA) station house where plaintiff was issued a summons for disorderly conduct. Carlovich's affidavit stated as follows: "Person named on the face did intentionally cause public alarm and noise aboard [*3]my train by yelling and screaming at the other passengers for no apparent reason. He did not cease his conduct when requested to do so numerous times by myself a custodian (trainman) of LIRR train #823."

Eventually, plaintiff was released, arrived at work, and wrote a letter to the Long Beach Building Department about DeCurtis's illegal tenant, and prepared a notice of claim against the MTA (id., ¶¶ 52, 54). During the time that plaintiff was being processed, DeCurtis and her friends gave statements to the MTAPD desk lieutenant Robert E. Howell (id., ¶ 55). Stevens and Jacobs also gave verbal and written statements to MTAPD officer Peter Ruis (id., ¶¶ 57-58). Jacobs also gave a written statement about the incident (id., ¶ 58).

The following day, October 6, 2006, two MTAPD detectives visited DeCurtis at her home, and she gave another statement to them about plaintiff's conduct wherein she said that she turned her head to face the window because she "thought he was going to punch or shoot me." She based that on the fact that she knew that plaintiff was previously a law enforcement officer and that in the past he was arrested for throwing coffee on another female commuter (id., ¶ 60). That evening, two MTAPD detectives entered plaintiff's apartment building without permission, rang his door bell and asked plaintiff to step into the hallway so that they could arrest him, but plaintiff refused to accommodate them (id., ¶¶ 61, 62).

On October 9, 2006, while on his way to work, plaintiff was arrested and imprisoned for three days by MTAPD detectives Cintron and Ruscano on the charge of menacing in the third degree, a misdemeanor (id., ¶ 63). At the time of the arrest, plaintiff's right shoulder was negligently "re-injured" when they rear cuffed him and placed him in their unmarked car (id., ¶ 65). While being processed, plaintiff learned that the courts in Nassau County were closed for a holiday and asked for an appearance ticket or station house bail but he was told that they were not available due to the seriousness of the charge (a class "B" Misdemeanor) (id., ¶ 66). On December 12, 2006, the Criminal Court Information charging plaintiff with disorderly conduct was dismissed on the joint application of plaintiff and the Queens District Attorney

(id., ¶ 69). This action ensued.

The proposed amended complaint contains 30 causes of action. The first eight causes of action are against DeCurtis for (1) slander; (2) libel; (3) libel; (4) false arrest; (5) malicious prosecution; (6) false imprisonment; (7) malicious prosecution in Nassau County District Court; and (8) intentional infliction of emotional distress.

The ninth cause of action is against Stevens for intentional infliction of emotional distress.

The tenth, eleventh, and twelfth are against Jacobs for slander, libel, and intentional infliction of emotional distress, respectively.

The thirteenth through eighteenth causes of action are against Carlovich for violation of 42 USC § 1983 for retaliating against plaintiff for exercising his right to equal protection (13th); slander (14th); libel (15th); false arrest (16th); intentional infliction of emotional distress (17th); and malicious prosecution in Queens County, New York (18th).

The nineteenth through twenty-second are against Cintron for violation of 42 USC § 1983 for retaliating against plaintiff for exercising his right to equal protection (19th); false arrest (20th); negligence (21st ); and false imprisonment (22nd). [*4]

The twenty-third through twenty-sixth causes of action are against LIRR for liability of the state law claims under the doctrine of respondeat superior (23rd ); "unconstitutional policy" in violation of 42 USC § 1983 (24th); under 42 USC § 1983 for failure to train (25th); and under 42 USC § 1983 for failure to supervise (26th).

The twenty-seventh through thirtieth causes of action are against the MTAPD for liability of the state law claims under the doctrine of respondeat superior (27th); "unconstitutional policy" in violation of 42 USC § 1983 (28th); under 42 USC § 1983 for failure to train (29th); and under 42 USC § 1983 for failure to supervise (30th).

Additionally, plaintiff commenced an action based upon the same incident in the Supreme Court, Nassau County (Index Number 18050/07) (Nassau County Action).

All defendants now move for dismissal of all claims in this action.

Discussion

DeCurtis

The first cause of action for slander is based on the following statement that DeCurtis allegedly gave to the MTAPD desk lieutenant: "that plaintiff harassed her earlier on this date . . . has routinely harassed passengers onboard the train between Long Beach Station and Penn Station . . . That she feels threatened by this individual (plaintiff) . . . fears for her safety and wishes to pursue an order of protection and that plaintiff looked at her, got up and pointed his finger in her face in a threatening manner'; . . . then made reference to knowing where she lived, stated her [a, sic] exact address and made comments about her daughter and the people she goes out with.'"[FN2]

The second and third causes of action are against DeCurtis for libel. The second is based upon the following written statement that DeCurtis gave to police officer Iannucci: "For approximately one year, I Donna DeCurtis on Tuesdays and Thursdays travel into Manhattan from Long Beach via Long Island Railroad. During that time I have been inconvenienced (sic), alarmed & harrassed (sic) repeatedly by another commuter on board who I will refer to as the subject (plaintiff)."At approximately 8:03 AM, I boarded train # 823, car # first front car and observed the above subject. I sat down and had a conversation with a fellow commuter on board above mentioned train. Suddenly, the subject became irate & started yelling at the commuter later known as Stan."A short time thereafter, the subject who was sitting on my right across the isle then looked at me, got up & pointed his finger in my face in a threatening manner and stated and, you, I know where you live, 311 West Beech and I know about your daughter and who you go out with, etc. and so forth.[*5]"As best I could, I tried to deal with the situation at my earliest opportunity I alerted a conductor to this incident & requested the police. The conductor per my request made the necessary arrangements."I noticed during the remainder of the train ride, he (plaintiff) was randomly yelling and terrorizing other commuters in my general area on board this train."The train stopped at the Jamaica station, an unscheduled stop, whereby the MTA police was awaiting to remove the disorderly subject."I was instructed by the conductor of the train to remain on board & file a complaint about the subject at Penn Station. The statement was taken on my behalf by P.O. Iannucci, MTAPD shield #2010. This statement is accurate and true to the best of my recollection & knowledge."

The third is based upon the following statement allegedly given by DeCurtis to Detective Hendershot on October 6, 2006: "[T]hat plaintiff: started yelling at the commuters she was having a conversation with. He then stood up from his seat turned towards me where I was sitting next to my window. He pointed his finger at my face and stated I know you, and I know where you live. 311 West Beech St. I know you have a five year old daughter. I know where she goes to school, and I know your [sic] fixing your kitchen without permits, and I know you have an illegal tenant.'"turned my head to face the window because I thought he was going to punch me or shoot me. The reason I thought I might be shot is because I knew the suspect (John Clifford) was previously a law enforcement officer. I know that the suspect (John Clifford) in the past was arrested for throwing coffee on another female commuter."

All three defamation causes of action are dismissed on several grounds. First, plaintiff fails to identify which words among these relatively lengthy statements he deems defamatory. In a claim for slander or libel, the particular words complained of must be set forth in the complaint (McRedmond v Sutton Place Rest. & Bar, Inc., 48 AD3d 258 [1st Dept 2008]). Although the alleged defamatory words are included in the complaint, plaintiff does not set forth the exact defamatory words and the reason why he deems them to be defamatory. This is significant because substantially the entirety of the statements that DeCurtis made to the police are consistent with plaintiffs' own rendition of what transpired between the parties.

For example, the proposed amended complaint alleges that (1) plaintiff "had words" with DeCurtis on previous occasions due to her refusal to "modulate" her "loud talking" (Proposed Amended Complaint, ¶ 15); (2) plaintiff heard DeCurtis mention the location of her house and report an alleged illegal tenancy to the authorities (id., ¶¶ 17-18, 52); (3) another commuter arrived on the train whom plaintiff also "had words with" because of "loud talking and rude behavior" (id., ¶ 20); (4) plaintiff told Stevens to "knock it off" and that "by now he should know [*6]the loud talking annoyed plaintiff and that if he continued plaintiff would arrest him as a citizen for harassment" (id., ¶ 35); (5) plaintiff "told the second brakeman/conductor that if he interfered with plaintiff's civilian arrest it was at his peril" (id., ¶ 45); and (6) "plaintiff became angry enough to tell defendant DeCurtis that if she didn't knock it off plaintiff would report her illegal tenant to the Building department" (id., ¶ 46).

Secondly, the alleged statements are covered by a qualified privilege since they were made by one person (DeCurtis) to another (police officer) upon a subject (harassment) in which they both have an interest (Liberman v Gelstein, 80 NY2d 429, 437 [1992]). As stated by the Court of Appeals, the rationale is that "so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded" (id.). Statements made to the police qualify for the common interest privilege (Present v Avon Prods., 253 AD2d 183, 188 [1st Dept], lv dismissed 93 NY2d 1032 [1999]).

Although the privilege is inapplicable where the statements are made with malice, malice must be the sole motivation (Liberman v Gelstein, 80 NY2d at 437), which is not adequately alleged here. Conclusory assertions of malice are insufficient to overcome the privilege (Gondal v New York City Dept. of Educ., 19 AD3d 141 [1st Dept 2005]; Trachtman v Empire Blue Cross & Blue Shield, 251 AD2d 322 [2d Dept 1998]). The statements are not facially indicative of malice (Fogarty v Transmedia Network, 2 AD3d 269 [1st Dept 2003]).

The fourth, fifth, sixth, and seventh causes of action are against DeCurtis for false arrest, malicious prosecution in Queens County, and false imprisonment in Nassau County, and malicious prosecution in Nassau County District Court, respectively. Allegedly, as a result of DeCurtis's malicious statements and writings, plaintiff was arrested without probable cause, and prosecuted in Queens County for disorderly conduct, which charge was eventually dismissed. It is further alleged that plaintiff was arrested without probable cause, and jailed for three days on the complaint of defendant detective Cintron for menacing, which charge was eventually dismissed.

The elements of an action for malicious prosecution are (1) initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice (Colon v City of New York, 60 NY2d 78, 82, rearg denied 61 NY2d 670 [1983]; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128 [1st Dept 1999]). The elements of a false imprisonment claim require allegations that: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged (Broughton v State, 37 NY2d 451, 456, cert denied 423 US 929 [1975]).

The elements of false arrest and malicious prosecution are substantially the same (Boyd v City of New York, 336 F3d 72 [2d Cir 2003]). "[A] civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" (Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, supra). Such is the case here. Thus, the complaint fails to state a valid cause of action for these theories of liability.

The eighth cause of action is against DeCurtis for intentional infliction of emotional distress. This cause of action has four elements: (1) extreme and outrageous conduct, (2) intent [*7]to cause, or disregard of a substantial probability of causing, severe emotional distress, (3) a causal connection between the conduct and injury, and (4) severe emotional distress (Howell v New York Post Co., 81 NY2d 115, 120 [1993]). Courts tend to focus on the outrageousness element, because that is the one most susceptible to determination as a matter of law (id.).

The allegations here (loud talking and the statements to the police, quoted above) do not constitute conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and . . . regarded as atrocious, and utterly intolerable in a civilized community" (Brown v Sears Roebuck & Co., 297 AD2d 205, 212 [1st Dept 2002] [internal quotation marks and citations omitted]).

Stevens

The ninth cause of action is against Stevens for intentional infliction of emotional distress. It alleges that Stevens prevented plaintiff's civilian arrest of others by engaging in a campaign of harassment and intimidation with DeCurtis and Jacobs by lying to the conductors and the MTAPD about plaintiff's conduct on the train, and failing to inform the MTAPD that DeCurtis and Jacobs were lying about what they told the MTAPD.

The claim is dismissed for the reason that the similar claims against DeCurtis are dismissed. Contrary to plaintiff's allegation, the allegations do not constitute conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and . . . regarded as atrocious, and utterly intolerable in a civilized community" (Brown v Sears Roebuck & Co., 297 AD2d at 212).

Jacobs

The tenth cause of action is against Jacobs for slander based upon the oral account that Jacobs allegedly gave to MTAPD officer Ruis at Penn Station on October 5, 2006. The eleventh cause of action is against Jacobs for libel based upon the written statement that Jacobs allegedly gave to officer Ruis. The statements attributed to Jacobs are substantially the same as those attributed to DeCurtis, and the claims are dismissed for the reasons discussed above.

The twelfth cause of action is against Jacobs for intentional infliction of emotional distress. It alleges that Jacobs maliciously slandered plaintiff and filed a false document with the MTAPD and that he helped Stevens avoid plaintiff's lawful arrest of Stevens by lying to the conductors and MTAPD about his and Stevens's conduct. The claims are dismissed for the reason that the similar claims against DeCurtis and Jacobs are dismissed, discussed above.

Carlovich

The thirteenth cause of action is against Carlovich for violation of 42 USC § 1983 for retaliating against plaintiff for exercising his right to equal protection. Allegedly Carlovich retaliated against plaintiff because he tried to exercise his right to confront the "rude behavior" of DeCurtis and Stevens and to perform a lawful citizen's arrest, thereby depriving plaintiff of his right to equal protection under the law.

"Section 1983 creates a species of liability in favor of persons deprived of their federal civil rights by those wielding state authority. [T]he central objective of the Reconstruction-Era civil rights statutes . . . is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief" (Felder v Casey, 487 US 131, 139 [1988] [citation omitted]). To state a claim under 42 USC § 1983, a plaintiff must allege at a minimum that (1) the challenged conduct was attributable, at least in part, to a person [*8]acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States (DiPalma v Phelan, 81 NY2d 754 [1992]; Mann v Alvarez, 242 AD2d 318, 319-320 [2d Dept 1997]).

In asserting that Carlovich deprived plaintiff of the equal protection of the law, in his Reply Affirmation, plaintiff argues that Carlovich purposely prevented plaintiff from performing a civilian arrest upon Stevens, and, instead, permitted plaintiff's arrest. Notwithstanding this conclusory assertion, neither the proposed amended complaint, nor plaintiff's supplemental submission, demonstrate that this cause of action is validly stated. According to the amended complaint itself, two conductors, including Carlovich, formulated their own opinion as to what transpired and relayed that information to the MTAPD officer who then made the arrest, albeit "on the complaint of defendant Carlovich" (Proposed Amended Complaint, ¶ 51).

The proposed amended complaint indicates that there was probable cause for the actions of Carlovich to the MTAPD because of the dispute among the passengers. As stated above, the amended complaint contains the following allegations: (1) plaintiff "had words" with DeCurtis on previous occasions due to her refusal to "modulate" her "loud talking" (id., ¶ 15); (2) plaintiff heard DeCurtis mention the location of her house and report an alleged illegal tenancy to the authorities (id., ¶¶ 17-18, 52); (3) another commuter arrived on the train whom plaintiff also "had words with" because of "loud talking and rude behavior" (id., ¶ 20); (4) plaintiff told Stevens to "knock it off" and that "by now he should know the loud talking annoyed plaintiff and that if he continued plaintiff would arrest him as a citizen for harassment" (id., ¶ 35); (5) plaintiff "told the second brakeman/conductor that if he interfered with plaintiff's civilian arrest it was at his peril" (id., ¶ 45); and (6) "plaintiff became angry enough to tell defendant DeCurtis that if she didn't knock it off plaintiff would report her illegal tenant to the Building department" (id., ¶ 46). Thus, according to plaintiff's own allegations, he argued with the other passengers, he gave an angry directive to Stevens, he threatened to file a complaint concerning DeCurtis's personal affairs, in a matter totally unrelated to the dispute on the train, and he threatened the second conductor by stating that if he interfered, he would do so "at his peril." Moreover, the complaint also indicates that Carlovich was able to observe the participants to the dispute and formulate his own first-hand opinion as to who was at fault. Hence, the complaint fails to adequately state a cause of action against Carlovich for a violation of 42 USC § 1983 for retaliating against plaintiff for exercising his right to equal protection.

The fourteenth and fifteenth causes of action are against Carlovich for slander and libel, respectively. Allegedly, Carlovich gave the following statement, orally to MTAPD officer Aurisano at Jamaica Station on October 5, 2006, and in writing because it appears on the back of the summons prepared and issued by MTAPD officer Aurisano: "Person named on the face did intentionally cause public alarm and noise aboard my train by yelling and screaming at the other passengers for no apparent reason. He did not cease his conduct when requested to do so numerous times by myself (trainman) of LIRR #823."

These causes of action are dismissed for the reasons discussed above. Specifically, plaintiff fails to specify which of these words were defamatory. Moreover, the report to MTAPD officer is subject to a qualified privilege and there has not been no showing of malice (Present v [*9]Avon Prods., 253 AD2d 183, 188).

The sixteenth cause of action is against Carlovich for false arrest resulting from Carlovich's false statements to MTAPD officer Aurisano. The eighteenth cause of action is against Carlovich for malicious prosecution in Queens County, New York. The same analysis as to retaliation and malicious prosecution, discussed above, applies here. There was probable cause for the actions of Carlovich based upon plaintiff's own version of the incident.

The seventeenth cause of action is against Carlovich for intentional infliction of emotional distress based upon the foregoing slander and libel claims, and are, accordingly, also dismissed. Moreover, plaintiff himself does not oppose dismissal of this claim (Affidavit in Reply, ¶ 91).

Cintron

The nineteenth cause of action is against Cintron for violation of 42 USC § 1983 for retaliating against plaintiff for exercising his right to equal protection. This conclusory and speculative assertion is inconsistent with plaintiff's contention in his opposition papers that the MTAPD sided with the passenger defendants because "it was easier to maintain the, status quo, then to enforce the noise and safety rules of the MTA" (Affidavit in Opposition, sworn to May 21, 2008, ¶ 13).

The twentieth and twenty-second causes of action are against Cintron for false arrest and false imprisonment. Based on plaintiff's own allegations, prior to making the arrest, Cintron had sufficient information, including information obtained from a complaining witness, to reasonably conclude that there was probable cause to justify the action taken (see People v Chipp, 75 NY2d 327, cert denied 498 US 833 [1990]). Although plaintiff alleges that the police were previously aware of plaintiff and that they had an interest in punishing him (Affidavit in Reply, ¶ 12), speculation is insufficient to establish probable cause (see Manfredonia v Weiss, 37 AD3d 286 [1st Dept 2007]).

The twenty-first cause of action is against Cintron for negligence. Allegedly, Cintron's "negligent rear cuffing of plaintiff and stuffing plaintiff into the cramped rear seat of defendant's unmarked car" was a proximate cause of the reinjury of plaintiff's right shoulder. There is no cause of action for negligent assault in New York (Wertzberger v City of New York, 254 AD2d 352 [2d Dept 1998]; Richman v Nussdorf, 203 AD2d 548 [2d Dept 1994]). "[O]nce intentional offensive contact has been established, the actor is liable for assault and not negligence" (Schetzen Robotsis, 273 AD2d 220, 221 [2d Dept 2000]). Thus, the allegations here sound in the intentional tort of assault and battery.

Nevertheless, this claim is dismissed because, as asserted by defendants, plaintiff's Notice of Claim, dated October 5, 2007 (Exhibit C to Affirmation of Kevin McCaffrey) does not make any reference to negligence or intentional tort for the alleged injury occurring during the arrest (which occurred a few days later), and the subsequent Notice of Claim, dated October 10, 2007 (Exhibit E to Affirmation of Kevin McCaffrey), is untimely. Thus, Cintron is entitled to dismissal of this claim (Grullon v City of New York, 222 AD2d 257 [1st Dept 1995]). Plaintiff contends that defendants had ample notice of the event because they had actual knowledge of everything that transpired in that it involved employees of the MTA. Based on this reasoning, a notice of claim would never be necessary.

LIRR/MTA [*10]

The twenty-third cause of action is against LIRR under the doctrine of respondeat superior for liability of the state law claims. Plaintiff does not oppose dismissal of this claim (Affidavit in Reply, ¶ 92).

The twenty-fourth cause of action is against LIRR for "unconstitutional policy" in violation of 42 USC § 1983. It alleges that plaintiff's arrest was made pursuant to a company custom that may or may not have received approval through LIRR's official decision-making channels, thereby depriving plaintiff of the equal protection of the law. The twenty-fifth cause of action is against LIRR under 42 USC § 1983 for failure to train. The twenty-sixth cause of action is against LIRR under 42 USC § 1983 for failure to supervise.

The twenty-seventh through thirtieth causes of action are against the MTAPD under the doctrine of respondeat superior for liability of the state law violations of Cintron; for "unconstitutional policy" in violation of 42 USC § 1983; under 42 USC § 1983 for failure to train; and under 42 USC § 1983 for failure to supervise.

MTAPD argues that these claims must be dismissed because the MTAPD is not a separate entity subject to suit. Plaintiff concedes that MTAPD is not a proper party to this action, but requests that the MTA be substituted in place of the MTAPD. The substitution would be unavailing. These claims (whether against the LIRR, MTAPD, or MTA) are based upon speculation and, therefore, they are not viable (Ricciuti v N.Y.C. Transit Auth., 941 F2d 119, 123 [2d Cir 1991]). Based upon the foregoing, LIRR's separate motion (001) for dismissal on other grounds is denied as moot.

Finally, none of the parties seeking sanctions in their respective notices of motions have articulated or argued the basis for such award, and therefore, they have not made an adequate showing for sanctions, and the requests are denied.

Accordingly, it is

ORDERED that motion sequence number 001 by The Long Island Rail Road Company for dismissal of the causes of action against it is denied as moot; and it is further

ORDERED that the cross motion by Louis Jacobs for dismissal of the causes of action against him is granted, and these causes of action are dismissed, with costs and disbursements to him as taxed by the Clerk of the Court; it is further

ORDERED that motion sequence number 002 by The Long Island Rail Road Company, Metropolitan Transportation Authority Police Department, Robert Carlovich, and Carlos Cintron for dismissal of the causes of action against them is granted, and these causes of action are dismissed, with costs and disbursements to them as taxed by the Clerk of the Court; and it is further

ORDERED that motion sequence number 003 by Donna DeCurtis for dismissal of the causes of action against her is granted, and these causes of action are dismissed, with costs and disbursements to her as taxed by the Clerk of the Court; and it is further

ORDERED that motion sequence number 004 by Stanley Stevens for dismissal of the cause of action against him is granted, and the cause of action is dismissed, with costs and disbursements to him as taxed by the Clerk of the Court; and it is further

ORDERED that the cross motion by plaintiff John Clifford for leave to serve an amended complaint is denied, and it is further

ORDERED that the Clerk is directed to enter judgment accordingly. [*11]

Dated:December 19, 2008

ENTER:

_______________

J.S.C. Footnotes

Footnote 1:Motion sequence numbers 001, 002, 003, and 004 are consolidated for disposition.

Footnote 2:All typographical errors, grammatical errors, and the use of the word "sic" are as they appear in the proposed amended complaint.