Gonzalez v City of New York

[*1] Gonzalez v City of New York 2008 NY Slip Op 51688(U) [20 Misc 3d 1130(A)] Decided on August 7, 2008 Supreme Court, Kings County Kurtz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2008
Supreme Court, Kings County

Hector Louis Gonzalez, Plaintiff,

against

The City of New York, and Individually and in their Official Capacity as New York City Police Officers Alphonse Pascual, David Pilnaceck, Howard Reed, Detective Borelli, John Bientiendo, Teresa Cohen, Ronald Taylor, John Sweeney, and other John Doe Police Officers; and individually and in their official capacity as New York City Police Officers Richard Roes, supervisory police officers of the City of New York, the identity and number of whom are presently unknown, Defendants.



26771/03



Cochran, Neufeld & Scheck, LLP

Attorney for Plaintiffs

99 Hudson Street

8th Floor

New York, NY 10013

Cathy Neustein, Esq.

Assistant Corporation Counsel

Law Department, City of New York

100 Church Street

New York, NY 10007

Donald S. Kurtz, J.

Upon the foregoing papers, defendants move for an order dismissing the complaint pursuant to CPLR 3211 (a)(7) and/or summary judgment pursuant to CPLR 3212.

Background Facts and Procedural History

The instant action arises out of the prosecution of plaintiff Hector Louis Gonzalez for the December 2, 1995 murder of Lemur "Lenny" Cruz outside the Con Sabor Night Club in Brooklyn, New York. On the evening in question, plaintiff, plaintiff's cousin Carlos Perez, and several acquaintances including Billy Gerena, Christian Pacheco, and Roberto Correa decided to attend the club. According to plaintiff's deposition testimony, Gerena, Pacheco, and Correa were all members of the Latin Kings, a notorious street gang based in the New York City area. Also at the club that night were Cruz and his friends Marc and Juan Mendez and Raymond Gonzalez.

Approximately two hours after plaintiff and his friends arrived at the club, an altercation involving several individuals including Pacheco and Correa broke out on the dance floor. Although it does not appear that Cruz was involved in the initial altercation, as the fight grew larger, he was attacked by numerous individuals in the club. According to Marc Mendez's testimony during the subsequent criminal trial, this group yelled "get the black guy"[FN1] and chanted "Latin Kings" as they attacked Cruz. The fight eventually spilled to the street outside the club as Mr. Cruz was dragged out of the club by a group of males where he was viciously beaten and stabbed. According to plaintiff, one of the males involved in this assault was Correa, who cut Cruz in the head with a razor blade. Plaintiff also testified that Correa's hand was cut during the fight and that plaintiff wrapped the wound using his own shirt.

Ultimately, Mr. Cruz fell to the ground and most of the people who had been at the club and observed the fight outside began to leave the area. Thereafter, members of the New York City Police Department (NYPD) began to respond to the crime scene. At this early stage of the investigation, defendant John Benintendo, a lieutenant and tour commander in the NYPD Transit Police Task Force in charge of the crime scene, conducted and/or supervised all showup identification procedures that took place at and around the crime scene.

Among the club patrons leaving the area following the stabbing of Cruz were plaintiff, his cousin Carlos Perez, and a female whom plaintiff identified as "Chuckie." As plaintiff, Perez and Chuckie walked down the street away from the club, a marked police car pulled up to them, whereupon two police officers exited the vehicle and ordered the three to "get against the wall." According to plaintiff's deposition testimony, the group told the officers that they were leaving the club. Thereafter, the police officers let plaintiff and Chuckie go on their way but decided to "take [Perez] in, because he had a gash in his hand and he needed stitches." Plaintiff and Chuckie then flagged down a car service vehicle with the intent of returning to plaintiff's home. However, as they were driving through the area, they witnessed Perez being put into an ambulance and decided to stop. Thereafter, a plainclothes police officer drove plaintiff to [*2]Methodist Hospital where he believed the ambulance brought his cousin.

At the hospital, plaintiff encountered Sgt. Teresa Cohen of the NYPD in the emergency room. When Cohen noticed blood on plaintiff's pants, he was searched by other police officers who found a bag of marijuana on his person. Plaintiff was then handcuffed and placed in a hospital room. According to plaintiff's deposition testimony, while in this room, police officers brought two witnesses from the crime scene to view him and both of these individuals indicated that they did not recognize him as being involved in the crime. Thereafter, plaintiff was placed under arrest and was brought to the 78th Precinct in Brooklyn, where he was given a desk appearance ticket for marijuana possession.

By the time plaintiff arrived at the precinct, defendant Alphonse Pasqual had been assigned as the NYPD Detective in charge of the case. Among his responsibilities in this capacity was to conduct and supervise all lineup identification procedures that took place in connection with the Cruz murder. In one of these lineups, plaintiff was identified by Marc Mendez as one of the people who "was on top of my friend [i.e., Cruz]."[FN2] Plaintiff was then placed under arrest for the murder of Cruz and his pants were vouchered and sent to the Office of the Chief Medical Examiner for serology testing on the blood stains.

Following his arrest, plaintiff, Roberto Correa, Christian Pacheco, Hector Perez and Billy

Gerena (who were also arrested for Cruz's murder) were incarcerated at Rikers Island pending their trials. Ultimately, a joint criminal trial was held for these individuals which resulted in second degree murder convictions for plaintiff, Hector Perez, Pacheco, and Correa and an acquittal for Gerena. With respect to plaintiff, the conviction was based upon Marc Mendez's aforementioned identification, as well as the serological tests done on plaintiff's pants, which indicated that some of the blood stains were consistent with Cruz's blood. Plaintiff was sentenced to a prison term of 15 years to life.[FN3]

While plaintiff was serving his prison sentence, the United States Attorney for the Eastern District of New York in conjunction with the Federal Bureau of Investigation reinvestigated the murder of Cruz in order to determine if there were additional Latin Kings gang members involved in the crime who escaped prosecution by the Kings County District Attorney's Office. During the course of the investigation, numerous individuals who were present at the club during the night of the murder were interviewed, including Henry Arias, Carlos Perez, Eduardo Velez, and Gerena. These individuals indicated that plaintiff was a mere bystander with respect to the attack on Cruz and that the blood on plaintiff's pants was the result of plaintiff having used his [*3]shirt to stop the bleeding on Correa and Carlos Perez's hands. Subsequently, the FBI conducted DNA tests on blood samples taken from plaintiff's pants which determined that none of the blood on plaintiff's pants came from Cruz. Thereafter, plaintiff commenced a proceeding under section 440.10 of the CPL to set aside his conviction based upon this new evidence. The Kings County DA's Office ultimately conceded that plaintiff's conviction should be overturned and moved to dismiss the indictment against him. On April 24, 2002, this motion was granted by the court.

On July 22, 2002 plaintiff filed a notice of claim against the City of New York (the City) which asserted claims for civil rights violations, false arrest, false imprisonment, defamation, libel, and negligent and intentional infliction of emotional distress. The notice of claim further alleged that prosecutors and police knowingly relied upon false evidence to arrest, prosecute and convict plaintiff. On July 18, 2003, plaintiff filed a summons and complaint against the City as well as "John Doe" and "Richard Roe" NYPD officers and supervisory officers who were presently unknown. On April 22, 2005, plaintiff filed an amended summons and complaint against the City and individual NYPD Officers Alphonse Pasqual, David Pilnaceck, Howard Reed, Detective Borelli, John Benintendo (sued incorrectly as John Bientiendo), Teresa Cohen, Ronald Taylor, and John Sweeney. The amended complaint alleged six causes of action, including: (1) a claim against the individual NYPD defendants under 42 USC §1983 based upon malicious prosecution; (2) a claim against the individual NYPD defendants under 42 USC §1983 based upon violations of plaintiff's 14th Amendment right to due process, including the use of unduly suggestive identification techniques and the failure to disclose exculpatory evidence; (3) a state-law malicious prosecution claim against the individual NYPD defendants; (4) a negligent training and supervision claim against the City; (5) a respondeat superior claim against the City holding it liable for the tortious conduct of its NYPD employees; and (6) a negligent infliction of emotional distress claim against all the defendants.[FN4] Finally, the amended complaint seeks punitive damages.

During the discovery process, depositions of plaintiff, non-party Marc Mendez, and defendant Alphonse Pasqual were conducted. In addition, the City produced NYPD Detective Sergeant Joseph Blozis for a deposition. Numerous documents were also exchanged, including police reports, transcripts from plaintiff's criminal trial and pre-trial Wade hearing, as well as the serology report for the blood found of plaintiff's pants. Plaintiff filed a note of issue on December 3, 2007 and the City now moves to dismiss plaintiff's action.

Defendants' Motion to Dismiss

In moving for summary judgment, defendants argue that plaintiff's state law claims against the individual defendants must be dismissed inasmuch as these persons were not identified in plaintiff's notice of claim. In this regard, the City maintains that under General Municipal Law §50-e, the failure to specifically identify the individual NYPD officers in the [*4]notice of claim is fatal to all state law claims against these officers.

The defendants also argue that plaintiff's 42 USC §1983 claims must be dismissed against the City inasmuch as municipal liability under §1983 may not be predicated upon a theory of respondeat superior. In this regard, defendants note that in order for a municipality to be held liable under the federal statute, the plaintiff must prove that the actions of the municipality's employees were the result of a specific official policy, custom, or practice of the municipal defendant. Here, plaintiff has failed to identify any official policy which resulted in the alleged unconstitutional acts of the NYPD police officers who investigated the Cruz murder. Accordingly, defendants reason that plaintiff has failed to state a claim against the City under 42 USC §1983.

Defendants also argue that plaintiff's malicious prosecution claims, whether based upon state law or 42 USC §1983, must be dismissed. In raising this argument, defendants note that a necessary element of any malicious prosecution claim is the absence of probable cause for the criminal proceeding. Defendants further point out that plaintiff's indictment by a grand jury creates a presumption of probable cause which can only be overcome by showing that the NYPD engaged in fraud, perjury, withheld evidence, or otherwise egregiously deviated from accepted police procedure in investigating the crime. According to defendants, plaintiff cannot make such a showing.

In this regard, defendants aver that the fact that no DNA tests were conducted on plaintiff's pants does not constitute withholding evidence or amount to an egregious breach of procedure inasmuch as a defendant has no constitutional right to the use of any particular investigative tool, including DNA testing. In addition, defendants argue that the identification procedures used during the investigation of the Cruz murder were not unduly suggestive and did not involve any egregious deviation from police procedures in conducting lineup and showup identifications. In any event, defendants argue that even if unduly suggestive identification procedures were used, the individual NYPD defendants are entitled to qualified immunity for their conduct since a reasonable police officer would not have recognized the procedures used to have been unduly suggestive. In support of this argument, defendants note that the subject identifications were held to be admissible at the Wade hearing conducted prior to the criminal trial.

Similarly, defendants maintain that there is no merit to plaintiff's 42 USC §1983 claim to the extent that it is based upon alleged violations of plaintiff's 14th Amendment rights as enumerated in Brady v Maryland (373 US 83 [1963]). Specifically, defendants argue that since there is no evidence that the NYPD used improper or unduly suggestive identification techniques, plaintiff could not have been deprived of his Brady rights regarding the withholding of evidence concerning these alleged improper techniques.

Defendants also argue that plaintiff's malicious prosecution causes of action must be dismissed because the necessary element of malice is lacking in this case. In support of this [*5]argument, defendants note that plaintiff was detained at Methodist Hospital after Sgt. Cohen noticed blood on his pants and placed him under arrest when a bag of marijuana was discovered on his person. Once at the precinct, plaintiff was placed under arrest for the murder of Cruz when he was identified as one of the attackers in a lineup. According to defendants, there is no evidence that any of these actions were motivated by anything other than the desire to see justice served.

As a further basis in favor of their argument for the dismissal of plaintiff's 42 USC §1983 and common-law malicious prosecution claims, defendants argue that the prosecution and conviction of plaintiff "were intervening and superseding decisions that broke the chain of causation." In particular, defendants maintain that any chain of causation between alleged improper NYPD conduct and plaintiff's prosecution, conviction, and incarceration was broken by several intervening events including the independent determinations made by the DA's Office of whether to present the case to the Grand Jury and to proceed to trial, Marc Mendez' s testimony before the Grand Jury, the trial court's decision to deny the suppression of Mendez's identification, Mendez's identification of plaintiff at the criminal trial and the jury's decision to credit this identification, as well as the fact that all of this evidence was tested during the appeals process and plaintiff's conviction was affirmed by the Appellate Division.

Turning to plaintiff's cause of action for negligent training and supervision, defendants maintain that this claim must be dismissed inasmuch as it was not alleged in the notice of claim. In this regard, defendants note that this cause of action is separate and distinct from the civil rights, false arrest, false imprisonment, defamation, liable and negligent infliction of emotional harm claims alleged in the notice of claim.

Additionally, defendants argue that plaintiff's negligent infliction of emotional distress claim must be dismissed. In support of this argument, defendants point out that this cause of action is only viable in extremely limited circumstances whereby a breach of duty owed directly to the plaintiff either endangered plaintiff's physical safety or caused plaintiff to fear for his physical safety. Defendants further note that here, plaintiff has failed to plead this necessary allegation in his complaint.

Finally, defendants aver that plaintiff's claims for punitive damages must be dismissed. In support of this argument, defendants argue that, as a municipal defendant, the City is not subject to punitive damages. Moreover, defendants maintain that there is no basis for awarding punitive damages against the individual NYPD officers inasmuch as there is no evidence that any of them acted with the type of actual malice or reckless disregard of the rights of plaintiff so as to support a claim for punitive damages.

Plaintiff's Opposition[*6]

In opposition to defendants' motion, plaintiff initially notes that he is no longer pursuing claims against defendants David Pilnaceck, Howard Reed, Detective Borelli, Teresa Cohen, Ronald Taylor, John Sweeney, or other John Doe and Richard Roe police officers and supervisors.[FN5] In addition, plaintiff states that he is withdrawing his cause of action for negligent training and supervision and is not pursuing independent causes of action premised on the failure to conduct DNA testing.[FN6] Moreover, plaintiff notes that he has not pled and is not pursuing 42 USC §1983 claims against the City.

With respect to his remaining causes of action, plaintiff argues that he has a viable malicious prosecution claim against the City and NYPD officers Pasqual and Benintendo. In this regard, plaintiff initially notes that malicious prosecution claims based upon a §1983 violation are "substantially the same" as those based upon state law. Consequently, plaintiff's opposition papers contains a single analysis of the malicious prosecution issue. Furthermore, plaintiff notes that, to the extent that the failure to specifically name Pasqual and Benintendo in his notice of claim constitutes a bar to his state law malicious prosecution claim against these defendants, no such bar exists with respect to his §1983 malicious prosecution claim inasmuch as notice of claim requirements do not apply to claims based upon a violation of federal civil rights statutes.

Turning to the substance of his malicious prosecution cause of action, plaintiff points out that in order to sustain a claim under this theory, there must be evidence that: (1) defendants started a criminal proceeding against him or her; (2) the proceeding terminated in the plaintiff's favor; (3) there was no probable cause for the proceeding; and (4) the proceeding was instituted with actual malice. Plaintiff further notes that there is no real issue that the first two elements have been satisfied in this case and that the real dispute before the court concerns the probable cause requirement. Plaintiff concedes that the fact that he was indicted by the grand jury raises a presumption that there was probable cause for the proceeding against him. However, according to plaintiff, there is substantial evidence that the NYPD suppressed exculpatory evidence and engaged in egregious violations of police procedure during the investigation of the Cruz murder, both of which act to rebut the probable cause presumption.

In support of this argument, plaintiff maintains that there is evidence that Benintendo supervised a showup identification near the crime scene where Marc Mendez failed to identify plaintiff and that Benintendo concealed this exculpatory evidence. In this regard, plaintiff notes that Marc Mendez testified at his deposition that he participated in a showup procedure shortly after the crime wherein he viewed a group of suspects standing against a wall while he was sitting in the rear seat of a police vehicle and was unable to make an identification. Plaintiff maintains that this showup procedure bears a striking similarity to the incident shortly after the [*7]crime where he, Carlos Perez, and "Chuckie" were ordered against a wall by two police officers who exited from a marked police car. Specifically, plaintiff argues that a jury could conclude that these two incidents were actually the same event, and that the fact that the police let plaintiff go indicates that Marc Mendez cleared him of any involvement in the crime at this time. According to plaintiff, this exculpatory evidence would have been critical in the subsequent trial since it undermined Marc Mendez's identification of plaintiff in the subsequent lineup procedure at the precinct.

Additionally, plaintiff maintains that the NYPD's failure to document the negative showup identification procedure at the hospital, which precluded him from introducing this exculpatory evidence at his criminal trial, constituted an egregious breach of NYPD procedures. In support of this argument, plaintiff points to his deposition testimony wherein he indicated that while he was in custody in the hospital room, NYPD officers brought two witnesses from the crime scene to view him and both of these individuals indicated that they did not recognize him as being involved in the crime. Plaintiff further notes that there are no police reports or records documenting this showup procedure despite NYPD regulations that all such procedures be documented. In this regard, plaintiff submits an expert affidavit by Dr. Jennifer E. Dysart, who has a Ph.D in social psychology, specializes in the field of the reliability of witness identification, and has spent the last six years training members of the bar, judiciary, and law enforcement on the subject of how identification procedures affect the reliability of witness identifications. According to Dr. Dysart, the failure to document such negative showup identifications was contrary to minimum accepted police standards as they existed in 1995.

In addition, plaintiff maintains that the manner in which the NYPD conducted its showup procedures after the crime was unduly suggestive and violated NYPD policies. In particular, plaintiff notes that witnesses were permitted to view suspects in groups, rather than one-on-one. According to plaintiff, group showup procedures are strongly disfavored inasmuch as they do not contain any "fillers" which would serve to bolster the reliability of any identifications made during the procedures. In support of this claim, plaintiff refers to Dr. Dysart's affirmation, which indicates that such group showups violated minimum accepted police standards as they existed at the time.

Plaintiff further argues that there is ample evidence that the lineup procedures conducted at the 78th Precinct violated NYPD procedures in numerous respects. In particular, plaintiff notes that Pascual permitted several witnesses, including Marc Mendez, to remain segregated and unsupervised prior to viewing the lineups where they were free to discuss the crime and to see suspects and fillers as they entered the precinct. According to Dr. Dysart, the failure to supervise these witness violated minimum accepted police standards and necessarily called into question the reliability of any subsequent positive identifications. Moreover, plaintiff maintains that Pascual violated established procedure by allowing Marc Mendez to view a lineup with plaintiff after he had failed to identify plaintiff at a crime scene showup procedure. Plaintiff also claims that Pascual violated NYPD procedures in allowing witnesses to view lineups despite the fact that they were unable to describe suspects in pre-lineup interviews. [*8]

In addition to suppressing exculpatory evidence and conducting unduly suggestive identification procedures, plaintiff avers that there is sufficient evidence involving the NYPD's failure to document the murder investigation, as well as its outright falsification of police reports, so as to allow a reasonable jury to conclude that the defendants intentionally and recklessly ignored fundamental NYPD policies. In this regard, plaintiff again points to the NYPD's alleged failure to document the negative showup identifications that took place near the crime scene immediately after the murder and at the hospital. Plaintiff also notes that NYPD policy requires that a so-called "49 Report" be produced in all murder investigations which, among other things, documents all the identification procedures that occurred in connection with the crime. However, plaintiff avers that the 49 Report is missing from the Cruz investigation file and defendants have failed to offer any explanation for its absence. According to plaintiff, a reasonable jury could conclude that Benintendo and/or Pascual either recklessly failed to create the report or intentionally suppressed this report due to the fact that it contained exculpatory evidence in the form of negative showup identifications. Finally, plaintiff notes that Benintendo falsely reported that plaintiff was arrested at the crime scene after he was identified in a showup procedure and that Pascual perpetuated this lie by filing a false police report that indicated that plaintiff was arrested at the crime scene, when in fact, he was arrested at the hospital.

Plaintiff also avers that the suppression of exculpatory evidence (i.e., the negative showup identifications) which rebut the probable cause presumption with respect to his malicious prosecution claim serve to support his 42 USC §1983 claim against Pasqual and Benintendo for violating his 14th Amendment rights. Specifically, plaintiff argues that the suppression of this evidence constitutes a Brady violation.

With respect to defendants' argument that there is no evidence to support a finding that the NYPD acted with malice against him (which is a necessary element in a malicious prosecution claim), plaintiff notes that there is no requirement that he demonstrate that defendants intended to do him personal harm. Instead, malice can be inferred from the reckless conduct of Benintendo and Pascual in suppressing exculpatory evidence, conducting unduly suggestive identification procedures, failing to properly document the murder investigation, and in falsifying police reports. Thus, according to plaintiff, the issue of whether defendants acted with malice is a jury question.

Turning to defendants' argument that plaintiff's 42 USC §1983 and state law malicious prosecution claims must be dismissed because the prosecution and conviction of plaintiff were intervening and superseding events which broke the chain of causation between alleged NYPD misconduct and plaintiff's injuries, plaintiff avers that there is no basis in law for this argument. To the contrary, plaintiff maintains that it is well established that subsequent prosecutorial and/or judicial actions do not absolve police officers of their responsibility for malicious or unconstitutional prosecution where the officers conceal or misrepresent relevant evidence from those subsequent decision-makers.

Plaintiff also argues that he has a viable claim against defendants under a theory of [*9]negligent infliction of emotional distress. In particular, plaintiff maintains that there is ample evidence that defendants breached a duty not to maliciously prosecute him and that this breach resulted in his incarceration. Furthermore, plaintiff argues that an obvious and foreseeable result of this incarceration is the unreasonable endangerment of plaintiff's physical safety or, at a minimum, that plaintiff was caused to fear for his safety.

With regard to defendants' argument that the claims against Pascual and Benintendo must be dismissed because they were not identified in the notice of claim, plaintiff notes that the notice of claim requirement does not apply to his §1983 cause of action. With respect to his state law claims against these individuals, plaintiff argues that his notice of claim contained sufficient information to allow the City to investigate his claims against these individuals. In addition, plaintiff argues that by waiting until this late juncture to raise the issue of the adequacy of the notice of claim, defendants have waived any rights they had in this regard.

Finally, plaintiff argues that he may seek punitive damages against the individual defendants inasmuch as there is ample evidence that they acted with actual malice or reckless disregard of his rights.

Defendants' Reply

In reply to plaintiff's opposition papers, defendants initially note that plaintiff has failed to rebut their initial showing that the state law claims against the individual defendants must be dismissed for failure to name these individuals in the notice of claim. In support of this argument, defendants point to recent Appellate Division authority which stands for the proposition that the failure to identify a defendant in the notice of claim is a fatal defect. In addition, defendants point out that the filing of a notice of claim is a condition precedent to a lawsuit which can be raised at any time. Accordingly, defendants maintain that there is no basis to plaintiff's waiver argument.

Turning to plaintiff's malicious prosecution claim, defendants point out that plaintiff does not dispute the fact that the lack of probable cause is a necessary element in such a cause of action and that a grand jury indictment creates a presumption of probable cause. Defendants also note that, in an effort to overcome this presumption, plaintiff relies in large measure upon the claim that the NYPD failed to document or otherwise inform plaintiff that Marc Mendez viewed plaintiff in a showup identification procedure shortly after the crime while sitting in the back seat of a police vehicle. However, according to defendants, there is insufficient evident to support a finding that this showup identification ever took place. In addition, with respect to the alleged negative showup identification that took place at the hospital, defendants maintain that there is no evidence that this procedure involved Marc Mendez inasmuch as Marc Mendez testified that he could not recall being taken to Methodist Hospital on the evening in question and that he would have remembered being taken there if this had occurred. Moreover, defendants argue that, inasmuch as plaintiff was aware of this procedure from the moment that it occurred, this potentially exculpatory evidence was equally within the hands of the defense and the failure to [*10]disclose this information did not prejudice plaintiff.

Defendants also argue that there is no merit to plaintiff's claim that the group showup procedures conducted by the NYPD were unduly suggestive or otherwise constituted an egregious breach of NYPD policies. In particular, defendants maintain that, while group showups (as opposed to one-on-one viewings) are discouraged, they are permissible under the circumstances of the instant case, which involved groups of individuals fleeing a chaotic crime scene. In any event, defendants argue that plaintiff was not prejudiced by the manner in which the NYPD conducted showups since there is no evidence that he took part in any such showup.

Defendants also maintain that the lineup procedures conducted at the precinct were entirely proper. Specifically, defendants argue that the NYPD had probable cause for arresting plaintiff inasmuch as marijuana was discovered on his person at the hospital. Furthermore, defendants aver that they had a reasonable basis for placing him in a lineup at the precinct since there was evidence that he was connected to the Cruz stabbing. In particular, defendants note that he was seen at the hospital with blood on his pants looking for his cousin, who was involved in the attack.

Defendants further claim that the fact that Marc Mendez, Juan Mendez, and Raymond Gonzalez were permitted to remain together prior to viewing lineups was not an egregious deviation from police procedure and was irrelevant since this fact was not hidden from prosecutors or the criminal defense. Additionally, defendants note that Marc Mendez testified that the three men did not discuss any identification information with each other during this time period. Finally, with regard to plaintiff's claim that the NYPD violated its own policies by allowing Marc Mendez to view a lineup with plaintiff after he had failed to identify him at a crime scene showup, defendants again maintain that there is no evidence that this showup ever took place.

With respect to plaintiff's argument that other NYPD conduct was an egregious breach of police procedures, defendants maintain that plaintiff's arguments are without merit. In particular, defendants aver that the fact that Benintendo and Pascual reported and testified that plaintiff was arrested after being identified at an on scene showup was based upon a legitimate mistake. Namely, both of these officers confused Gonzalez with Gerena. According to defendants, this mistake did not prejudice plaintiff since he was fully aware that he was arrested at the hospital and this mistake was brought to the jury's attention during the trial. Moreover, defendants maintain that there is no basis for plaintiff's argument that the NYPD failed to produce a "49 report" in this case and have annexed a copy of this report to their reply papers.

In addition to arguing that plaintiff's opposition papers have failed to raise an issue of fact with respect to the probable cause issue, defendants argue that plaintiff has failed to demonstrate that any members of the NYPD acted with malice, which is also a necessary element to a malicious prosecution claim. According to defendants, the evidence in this case conclusively demonstrates that the NYPD thoroughly investigated a homicide involving dozens of witnesses [*11]and assailants and that any mistakes that occurred during the course of the investigation were the result of the chaotic circumstances surrounding the crime rather than the by-product of police malice toward plaintiff.

Turning to plaintiff's 42 USC §1983 claim against the individual defendants which are based upon alleged Brady violations, defendants again maintain that plaintiff's opposition papers fail raise an issue of fact as to whether the NYPD neglected to disclose the use of improper and unduly suggestive identification techniques, or failed to disclose any negative showup identifications inasmuch as such unduly suggestive identifications and negative showups never took place.

Finally, with respect to plaintiff's negligent infliction of emotional distress and punitive damages claims, defendant's reiterate their prior arguments that such relief is unavailable to plaintiff given the circumstances of this case.

Analysis and Findings

Initially, plaintiff's opposition papers indicate that he is no longer pursuing claims against defendants David Pilnaceck, Howard Reed, Detective Borelli, Teresa Cohen, Ronald Taylor, John Sweeney, or other John Doe and Richard Roe police officers and supervisors. Accordingly, as against these individual defendants, plaintiff's complaint is dismissed. In addition, plaintiff states that he is withdrawing his cause of action for negligent training and supervision. Thus, this cause of action is dismissed as well.[FN7]

Turning to plaintiff's state law claims against Pasqual and Benintendo, in order to commence a tort action against a municipal defendant or "any officer, appointee or employee thereof," a plaintiff must serve a notice of claim within 90 days of the underlying accident (see General Municipal Law §50-e[1][a]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]). A court may, in its discretion, extend the time period to serve the notice of claim upon consideration of various factors (General Municipal Law §50-e [5]). However, once the one-year 90 day statute of limitations for commencing tort actions against municipal defendants has expired, "courts have no power to authorize a late notice of claim" (Catterson v Suffolk County Dept. Of Health Servs., 49 AD3d 792 [2008]).

Here, it is undisputed that Benintendo and Pasqual were not named in plaintiff's notice of claim. Furthermore, the one-year 90 day statute of limitations for commencing tort actions against municipal defendants has long since expired. Accordingly, the state law malicious prosecution and negligent infliction of emotional distress claims against Benintendo and Pasqual must be dismissed (Tannenbaum v City of New York, 30 AD3d 357, 358 [2006]). In so ruling, [*12]the court notes that "there is no evidence of affirmative, misleading conduct by the defendants to warrant a determination that they waived or were estopped from asserting, the notice of claim issue" (Power Cooling, Inc. v Board of Educ. of City of New York, 48 AD3d 536, 537 [2008]). Specifically, "defendants' participation in pre-trial discovery [does] not preclude them from raising the untimeliness of the notice of claim" (LaRoc v City of New York, 46 AD3d 760, 761 [2007]).

While the court has dismissed plaintiff's state law malicious prosecution claim against Benintendo and Pasqual due to the failure to name them in his notice of claim, to a large extent this is a moot point since plaintiff has asserted a malicious prosecution claim against them under §1983, and it is well-settled that the notice of claim requirement does not apply to civil rights claims (Pendleton v City of New York, 44 AD3d 733, 738 [2007]; Tannenbaum, 30 AD3d at 358; see also Felder v Casey, 487 US 131 [1988]). Moreover, it is undisputed that the elements of a malicious prosecution claim, whether asserted as a state law claim or as part of a civil rights claim under §1983, are substantially the same. Consequently, if plaintiff has a viable state law malicious prosecution claim against the City, he will also have a viable §1983 malicious prosecution claim against Benintendo and Pasqual. At the same time, if the evidence is insufficient to support plaintiff's state law malicious prosecution claim, his §1983 malicious prosecution claim must fail as well.

Turning to the substance of plaintiff's malicious prosecution causes of action, "[i]n order to recover damages for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice" (Diederich v Nyack Hosp., 49 AD3d 491 [2008], citing Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). For purposes of the instant motion, only the latter two elements are at issue, namely the absence of probable cause and malice. Of these two elements, the bulk of the dispute revolves around the issue of whether or not there was a lack of probable cause to bring the criminal proceeding against plaintiff.

It is undisputed that where, as here, a plaintiff was indicted by a grand jury, a presumption of probable cause is created (Williams v City of New York, 40 AD3d 847, 849 [2007]; Haynes v City of New York, 29 AD3d 521, 523 [2006]). Accordingly, in order to maintain this cause of action, the burden rests with plaintiff to overcome the presumption of probable cause. The presumption may be overcome "by presenting evidence of fraud, perjury or suppression of evidence by the police'" (Harris v State of New York, 302 AD2d 716, 717 [2003], quoting Boomer v State of New York, 288 AD2d 729, 731-732 [2001]). Similarly, the presumption may be overcome by evidence that witnesses "have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney" (Chetrick v Cohen, 52 AD3d 449 [2008]). "The presumption may also be overcome by a showing that the police failed to make further inquiry when a reasonable person would have done so'" (Hayes, 29 AD3d at 523, quoting Carlton v Nassau County Police Dept., 306 AD2d 365, 366 [2003]). Finally, while New York does not recognize a cause of action for negligent police investigation, the probable cause [*13]presumption may be overcome based upon a showing that "the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Hernandez v State of New York, 228 AD2d 902, 904 [1996]).

Applying the law to the facts of the instant case, the court initially finds that plaintiff has failed to raise an issue of fact regarding his claim that the NYPD illegally suppressed evidence that Marc Mendez failed to identify plaintiff at a showup identification in the vicinity of the club shortly after the crime took place. Simply put, there is no evidence that this purported showup procedure ever took place. In this regard, plaintiff was unable to testify that there was any witness (let alone Marc Mendez) in the back of the police car when he, Carlos Perez and Chuckie where stopped near the club. Similarly, Marc Mendez could not recall having witnessed plaintiff from the back seat of a police car after the crime. In addition, plaintiff testified that the police took Carlos Perez with them after this stop because he was bleeding and needed medical attention, not that he was taken into custody because he was identified by a witness to the crime. Moreover, although Marc Mendez could not recall if he was driven around in a police car or van, Benintendo testified that Marc Mendez's brother, Juan Mendez, arrived at the crime scene in a police van. Since the Mendez brothers were not separated during the evening in question, this indicates that Marc Mendez was also transported in a police van. This contradicts plaintiff's claim regarding the purported showup identification inasmuch as plaintiff testified that he was stopped by a patrol car, not a police van.

Given the court's finding regarding the absence of evidence that plaintiff was cleared by Marc Mendez in a negative showup procedure at the crime scene, plaintiff's related claim that Marc Mednez's subsequent viewing of plaintiff in a lineup procedure at the precinct violated police policy and procedures is also without merit. Furthermore, plaintiff has failed to establish that inability of the lineup witnesses to specifically describe the perpetrators of the crime prior to viewing lineups constituted the type of egregious deviation from accepted police standards so as to overcome the presumption of probable cause. The same holds true for plaintiff's claim that the group showups that took place shortly after the crime constituted such a gross deviation. In particular, while defendants concede that group showups are disfavored, the evidence indicates that they are permissible in situations such as the instant one, which involved a chaotic crime scene where groups of individuals were fleeing the area after the crime. At most, the use of these group showups constituted negligent police investigation, which is not actionable in New York. In any event, inasmuch as there is no evidence that plaintiff was identified in one of these group showups, it does not appear that he was prejudiced by these procedures.

Notwithstanding the court's findings regarding the lack of evidence that the NYPD suppressed a negative showup identification of plaintiff by Marc Mendez, and that the use of group showup procedures and inability of lineup witnesses to describe the crime perpetrators did not constitute a gross deviation from accepted police standards, the court finds that plaintiff's opposition papers are sufficient to rebut the presumption of probable cause in three respects. In [*14]particular, it is undisputed that at the time the NYPD presented the results of its investigation of the Cruz murder to the District Attorney, the police reports falsely indicated that plaintiff was arrested after he had been identified by Marc Mendez at an on-scene showup identification. Indeed, the District Attorney presented the case to the grand jury under this false belief and it was not until the criminal trial had commenced that the record was corrected regarding the true circumstances of plaintiff's arrest at the hospital. This was long after plaintiff was indicted by the grand jury and after he had spent several months incarcerated at Rikers Island. Thus, at the time plaintiff was indicted, a key component of the case upon which the prosecution was proceeding was false. In the court's view, a jury could conclude that the failure to accurately record the circumstances of a murder suspect's arrest, and for the lead police investigators of the murder investigation to erroneously conclude that the suspect was arrested after being identified at the crime scene by a witness, constitutes the type of egregious deviation from accepted police standards so as to rebut the presumption of probable cause.

The court also finds that plaintiff's papers raise a triable issue of fact as to whether the NYPD's conduct in allowing Marc Mendez, Juan Mendez, and Ray Gonzalez to remain unsupervised at the precinct prior to viewing the lineups constituted a gross violation of police standards. In particular, it is undisputed that these witness, all of whom were friends with the murder victim, were placed in a room together unsupervised for several hours prior to viewing the lineups. In addition, Pasqual admitted at his deposition that NYPD policy required that such witnesses be supervised by a detective at all times and that the failure to take this precaution could compromise the reliability of any subsequent identification inasmuch as the witnesses would have had an opportunity to discuss the crime amongst each other prior to viewing the lineups. This is especially important in the instant case inasmuch as the murder case against plaintiff rested, in large measure, upon Marc Mendez's identification of plaintiff in the lineup that took place at the precinct.

Finally, the court finds that plaintiff's opposition papers are sufficient to raise a triable issue of fact as to whether the NYPD effectively suppressed evidence that two witnesses failed to identify plaintiff at a showup identification at the hospital. In this regard, plaintiff testified at his deposition that these witnesses viewed him after he was placed in a hospital room and that both of these individuals indicated that they did not recognize him as being involved in the crime. While it is true that plaintiff was aware of this alleged negative showup, the fact that there was no police documentation indicating that this procedure took place or who the witnesses were effectively precluded plaintiff from introducing this exculpatory evidence at trial. Moreover, defendants' own witnesses testified at their depositions that it was extremely important for all showup procedures to be documented by the police. Accordingly, there is also an issue of fact as to whether the failure to document this alleged showup procedure at the hospital constituted an egregious breach of accepted police standards.[FN8] [*15]

Having determined that plaintiff has presented sufficient evidence to overcome the presumption of probable cause that attaches following a grand jury indictment, the court turns to the last necessary element for a malicious prosecution claim, namely malice. Although malice is treated as a separate element to a malicious prosecution claim, "a finding that there was no probable cause for the plaintiff's arrest could support an inference of actual malice" (Lundgren v Margini, 30 AD3d 476, 477 [2006], citing Martin v City of Albany, 42 NY2d 13 [1977]). Accordingly, since there is an issue of fact regarding the issue of probable cause, it cannot be said as a matter of law that actual malice is lacking in this case.

Accordingly, that branch of defendants' motion which seeks summary judgment dismissing the state law malicious prosecution claim against the City is denied.[FN9]

Turning to plaintiff's 42 USC §1983 claim against Pasqual and Benintendo, this provision provides in pertinent part that "[e]very person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." In addressing the issue of whether or not plaintiff had overcome the presumption of probable cause that attached with the grand jury indictment, the court concluded that there were issues of fact regarding whether the City (acting through Pasqual and Benintendo) had improperly suppressed and/or failed to document a negative showup procedure at the hospital, failed to properly segregate and supervise witnesses prior to plaintiff's lineups, and presented erroneous evidence to the District Attorney to the effect that plaintiff was arrested at the crime scene after being identified in a showup procedure. Whether based upon a theory of false arrest or Brady violations, this alleged police misconduct also raises triable issues of fact regarding plaintiff's claim that the individual defendants violated his rights under 42 USC §1983 (see, e.g., Carlton, 306 AD2d at 366). Accordingly, that branch of defendants' motion which seeks to dismiss plaintiff's §1983 claims against Pasqual and Benintendo is denied.

With respect to plaintiff's negligent infliction of emotional distress claim, "such a cause of action must generally be premised upon conduct that unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or her own safety" (Gaylord v Fiorilla, 28 AD3d 713, 713-714 [2006]). Thus, "[a] cause of action to recover damages for negligent infliction of emotional distress does not require a showing of [actual] physical injury" (Daluise v Sottile, 40 AD3d 801, 803 [2007]). [*16]

Although there is no evidence before the court that plaintiff was injured during his incarceration, the court finds that incarceration in state prison for a period of over six years could reasonably cause plaintiff to fear for his own physical safety. Accordingly, that branch of defendants' motion which seeks summary judgment dismissing plaintiff's emotional distress claim is denied.

Finally, the court must address the issue of punitive damages. It is well-settled that punitive damages are not recoverable from a municipal defendant (Summerville v Lipsig, 270 AD2d 213 [2000], citing Sharapata v Islip, 56 NY2d 332 [1982]). Consequently, that branch of defendants' motion which seeks to dismiss plaintiff's punitive damages claim against the City is granted. With respect to Pasqual and Benintendo, "[i]t has long been recognized in New York that punitive damages may be awarded in an action for malicious prosecution if the defendant was motivated by actual malice or in reckless disregard of the plaintiff's rights" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]). Similarly, punitive damages may be awarded in cases involving 42 USC §1983 violations against individual defendants (Hartford Accident and Indem. Co. v Village of Hempstead, 48 NY2d 218, 223 [1979]). Here, the court has already determined that there are factual issues regarding the questions of malice and violations of plaintiff's rights. Accordingly, plaintiff has a viable punitive damages claim against Pasqual and Benintendo.

Summary

In summary, the court rules as follows: (1) plaintiff's claims against defendants David Pilnaceck, Howard Reed, Detective Borelli, Teresa Cohen, Ronald Taylor, John Sweeney are dismissed on consent; Plaintiff's cause of action for negligent training and supervision is also dismissed on consent; (2) that branch of defendants' motion which seeks dismissal of all state law claims against Benintendo and Pasqual is granted; (3) that branch of defendants' motion which seeks summary judgment dismissing plaintiff's malicious prosecution claim against the City is denied; (4) that branch of defendants' motion which seeks summary judgment dismissing plaintiff's 42 USC §1983 claim against Pasqual and Benintendo is denied; (5) that branch of defendants' motion which seeks summary judgment dismissing plaintiff's negligent infliction of emotional distress claim against City is denied; and (6) that branch of defendants' motion which seeks dismissal of plaintiff's claim for punitive damages is granted with respect to the City and denied with respect to defendants Pasqual and Benintendo.

This constitutes the decision and order of the court.

E N T E R,

_________________

J. S. C. Footnotes

Footnote 1:Marc Mendez testified that although Cruz was Puerto Rican, he looked like an African American.

Footnote 2:Plaintiff was also a participant in lineup procedures at the precinct by witnesses Alfredo Torres and Frances Corea. Frances Corea identified plaintiff but was never called as a witness at plaintiff's trial. Alfredo Torres was unable to identify plaintiff as one of the participants in Cruz's murder at plaintiff's trial.

Footnote 3:Plaintiff's conviction was affirmed on October 4, 1999 (see People v Gonzalez, 265 AD2d 341 [1999]).

Footnote 4:Plaintiff also brought an action against the State of New York in the Court of Claims pursuant to New York State Court of Claims Act §8-b.

Footnote 5:Thus, the only NYPD officer defendants remaining in this case are Alphonse Pasqual and John Benintendo.

Footnote 6:However, plaintiff asserts that he continues to rely upon the failure to conduct DNA testing as evidence of defendants' intent with respect to his remaining claims.

Footnote 7:Plaintiff also states that he is not pursuing an independent cause of action premised on the failure to conduct DNA testing. Thus, to the extent that plaintiff's complaint alleges such a cause of action, said claim is dismissed.

Footnote 8:The court notes that defendants' papers contain an extensive argument that the NYPD had probable cause to arrest plaintiff. However, this was unnecessary inasmuch as the grand jury indictment creates a presumption of probable cause. Moreover, once the plaintiff overcomes that presumption, the question of probable cause becomes a question for the jury rather than the court.

Footnote 9:Defendants' moving papers argue at length that, regardless of any alleged police misconduct, subsequent prosecutorial and judicial actions serve to break the chain of causation between this misconduct and plaintiff's prosecution. However, defendants have failed to cite to any authority which stands for the proposition that a state law malicious prosecution claim based upon police misconduct may be dismissed due to subsequent prosecutorial or judicial actions.