Lewis-El v State of New York

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Lewis-El v State of New York 2012 NY Slip Op 30316(U) January 24, 2012 Supreme Court, Nassau County Docket Number: 12765/11 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen J- DARYL LEWIS- EL, Index No. 12765/11 Plaintiff(s ), Motion Submitted: 11/3/11 Motion Sequence: 001 , 002 -againstTHE STATE OF NEW YORK, COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, POLICE OFFICER HOWARD FRIDBURG SHIELD #2222 , HOWARD FRIED BURG, OFFICER DOE, JOHN, OFFICER, JANE DOE #1, JANE #2, ASTORIA FEDERAL SAVIGS BANK (2090 MERRCK ROAD, MERRCK, NEW YORK REPUBLIC, 11566- 4737) MONIKA SHAH , MONIKA SHA, (2090 MERRCK ROAD, MERRCK, NEW YORK REPUBLIC, 11566-4737) AMY SUAU, AMY SUAU (2090 MERRCK ROAD, MERRCK NEW YORK REPUBLIC, 11566- 4737), Defendant(s ). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply........................... ................................................... Briefs: Plaintiff s/Petitioner ' s........................................ Defendant' s/Respondent' s.................................. Defendants Astoria Federal Savings Bank , Monika Shah and Amy Suau ("the Bank defendants ) move this Court for an Order dismissing the complaint against them. Plaintiff opposes the requested relief. [* 2] Plaintiff moves this Court for an Order granting him leave to amend his pleadings , and adjourning this matter for the purposes of discovery. The Bank defendants oppose the requested relief. It appears that the County ofN assau/N assau County Police Department has interposed an answer in this action. This action arises from an incident that occurred on June 10, 2010 , at Astoria Federal Savings Bank , located in Nassau County, New York. Plaintiff was present in the bank to deposit and to withdraw sums of money. Defendants Shah and Suau questioned plaintiffs signature , and advised plaintiff that they were attempting to verify his identity for his own safety. At some point , the discussion with the Bank employees escalated to the point where the employees summoned the Nassau County Police Deparment to the bank. Plaintiffwas given his cash withdrawal , but before he could leave the bank , plaintiff alleges that the police officer physically restrained him although the Bank employees had processed the transaction and allegedly stated to the officer that " everyhing is ok. " After additional police officers arrived , plaintiff was questioned further about his identification. Ultimately, plaintiff exited the bank , and no criminal charges were filed against him. Plaintiff fied his original complaint with the Nassau County Clerk' s office on 2011. In the complaint , plaintiff alleges four causes of action: 1) battery, 2) assault , 3) false imprisonment , and 4) intentional inflction of emotional distress. The first September 2 , three causes of action name only the police officer who initially responded to the incident. The fourth cause of action also names the police officer, but alleges that "the bank officers involved in the instant matter are equally liable , pursuant to the doctrine of respondeat superior. The Bank defendants move for dismissal ofthe complaint against them on the grounds that plaintiff has failed to state a cause of action , and that plaintiffs claims against them are time- barred. Plaintiff s proposed amended complaint includes the first four causes of action outlined above , and seeks to add fifth and sixth causes of action. The fifth cause of action alleges that the Bank employees and the police officer were negligent in their treatment of plaintiff, thereby violating his civil rights (sections 1983 and 1981). The sixth cause of action alleges that the Bank defendants and the police officer were " negligent in their duty of care " and inflcted emotional distress upon plaintiff. Plaintiff does not allege any new facts. [* 3] hi the first instance , plaintiffs proposed amendment of the complaint must be made pursuant to CPLR 93025 (b), as plaintiff s twenty days to amend the complaint without leave has long expired. The proposed amendment was received by the Nassau County Clerk' office on October 20 , 2011 , more than one year after the original complaint was fied. Leave to resulting from the delay amend pleadings " shall be freely given " absent prejudice or surprise 3025, Northbay Construction Co., Inc. v. Banco (CPLR Sewkarran v. 2d 510 (2d Dept. 711 N. 2d 758 (2d Dept. , 2004)), and unless the proposed 11 A. D.3d 44 , 782 N. amendment is " palpably insufficient" to state a cause of action or is patently devoid of merit 2d513 (2d (Smith-Hoyv. AMCPropertyEvaluations, Inc. 52A. D.3d809, 811 , 862N. 2d 238 (2d Dept. citng Lucido v. Mancuso 49 A. 3d 220 , 229 , 851 N. Dept. 2008)). Construction Corp., 275 A. D.2d 310 , , 2000); DeBellis, , 2008) proposed fifth cause of action , which is that the Bank defendants (and the police officer) " were negligent in the treatment to me in the discharge of their duty as a member of the public and both the bank and the police officer had a duty Plaintiffs assertion in the as a Citizen not to be treated in the manner that my Civil Rights wil not be violated, " alleges a violation of the federal Civil Rights Act found in 42 United States Code , Sections 1981 and 1983. been deprived of a specific right , or rights , secured by the Constitution and the laws of the United States , and plaintiff has not alleged that the bank defendants deprived him of a right , or rights , while acting under color of state law. (Flagg Thus , plaintiff has not alleged two basic elements of a claim under 42 U. C. 9 1983 Bros., Inc. v. Brooks 436 U. S. 149 98 S. Ct. 1729 56 L. Ed. 2d 185 (1978)). Plaintiffhas not alleged that he has C. 9 1981 likewise fails to state a cause of action. That section requires a plaintiffto allege that he was denied a contract because of discriminatory reasons , nor does it appear that plaintiff could make such a claim under the facts of this (see Chun Suk Bak v. Flynn Meyer Sunnyside, Inc. matter as presented in plaintiff 2d 656 (2d Dept. , 2001)). 285 A. 2d 523 , 727 N. Plaintiffs reference to 42 U. s papers Rather , it appears to the Court that the gravamen of plaintiff s fifth proposed cause of action is that he did not care for the way he was treated , not that there is a duty of care to be treated in any particular manner by defendants. "Absent a duty of care , there is no breach (Fox v. Marshall 88 A. 3d 131 , 135 , 928 and without breach there can be no liability" Plaintiff, appearing pro se , has not actually filed a motion seeking leave to amend the complaint , but has , instead , simply filed the amended complaint , presumably as his motion. [* 4] 2d 317 (2d Dept. , 2011 D. proposed cause of action alleges " negligence in their duty of care treatment , behavior , and inflcted emotional distress to me. . . . " It appears to the Court that Plaintiffs sixth this proposed cause of action possibly sounds in negligent inflction of emotional distress; however , it may be that plaintiff has simply reworded the fourth cause of action alleging intentional inflction of emotional distress by the police officer, for which plaintiff claims the Bank defendants are liable pursuant to the theory of respondeat superior. In any event , the Court finds that plaintiffs proposed cause of action sounding in either intentional or negligent inflction of emotional distress as to the Bank defendants is patently devoid of merit. None of the actions of the Bank defendants as alleged , including their summoning the police when the disagreement escalated , was so extreme , outrageous and intolerable in a civilzed society so as to sustain a cause of action for intentional (Howell v. New York Post Company, Inc. 81 N. 2d 115 43 N. see also Fischer v. Maloney, 2d 350 (1993); 121 612 N. 2d 699, 596 N. Andrews v. Bruk 220 A. 2d 376 , 631 2d 991 (1978); 553, 373 N. 2d 1215 402 N. 2d 771 (2d Dept. , 1995)). Likewise , a cause of action for negligent inflction of inflction of emotional distress emotional distress cannot be sustained (Perry v. Valley Cottage 2d 617 (2d Dept. , 1999); 690 N. 2d 57 (2d Dept. , 1997)). 543 659 N. 2d 522 , Animal Hospital, 261 Lauer v. City of New York 240 A. Upon even the most liberal reading ofthe proposed amendments to the complaint , and for all the foregoing reasons , this Court is constrained to deny plaintiff leave to amend, and his motion is denied. The Court now turns to the Bank defendants ' motion to dismiss the complaint as against them. The Bank defendants are named in only the fourth cause of action alleged in the complaint fied in September 20 I O. Specifically, and after alleging numerous acts of wrongdoing by the Nassau County police officer who responded to the incident , plaintiff alleges that " the bank oficers involved in the instant matter are equally liable , pursuant to the doctrine of respondeat superior. It is hornbook law that the doctrine of respondeat superior renders a master vicariously Plaintiff moves to amend the complaint after the Bank defendants first moved to dismiss the complaint asserting that the doctrine of respondeat superior is inapplicable to them in this context with regard to the actions of the police offcer. [* 5] liable for a tort committed by his servant while acting within the scope of his employment (Riviello v. Waldron 47 N. 2d 297 , 302 , 391 N. 2d 1278 418 N. S.2d 300 (1979)). Imposition of liability under this doctrine requires , at the minimum , an existing relationship (Louks v. between the employer and the third 2d 826 (2d Dept. , 1994)). Community Home Care Services 209 A. 2d 484 618 N. person who committed the tortious act It is beyond dispute that the police officer who responded to the incident in this case is not employed by the Bank defendants , but by the County of Nassau /Nassau County Police Deparment , who are the second and third-named defendants in this action. Thus , the fourth cause of action is dismissed for failure to state a cause of action as to the Bank defendants. Although plaintiff has not named the Bank defendants in the remaining three causes of action, those claims also fail under a theory of respondeat superior for the foregoing reason. Furthennore , plaintiff does not allege that any of the Bank defendants directly committed any acts constituting battery, assault , and/or false imprisonment. Finally, had those claims been directly asserted against the Bank defendants , they are untimely. Causes of action sounding in assault , battery and false imprisonment shall The incident giving rise to this action , 2010 , and the action was not commenced until September 2 , 2011. occurred on June 10 Thus , those claims as to the Bank defendants are time- barred. (CPLR be commenced within one year 215131). The Bank defendants ' motion for dismissal of the complaint as against them is granted. A preliminary conference (22NYCRR 202. 12) shall be held at the Preliminary Conference Desk , in the lower level of the Nassau County Supreme Court , on the 7 March , 2012 , at 9:30 a. m. This directive with respect to the date of the conference is subject to the right of the Clerk to fix an alternate date should scheduling require. Counsel for the movant shall serve a copy of this Order on all parties. A copy ofthe Order with affidavits of service shall be served on the DCM Clerk within seven (7) days after entry. The foregoing constitutes the Order of this Court. Dated: January 24 2012 Mineola , N. ENTERED JAN 30 2012 NASSAU COUNTY ceTY CLIt" OfFICE

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