Hoberman v City of New York
Annotate this CaseDecided on December 21, 2009
Supreme Court, Bronx County
Scott Hoberman and Viviana Hoberman, Plaintiff
against
The City of New York, "John" Ganzenmuller (First Name Fictitious) and "John" Terrasi (First Name Fictitious), Defendants.
18580/07
Michael A. Cardozo
Corporation Counsel
Attorney for Defendants
The City of New York
198 East 161st Street, Third
Bronx, NY 10451
BY:Jon Rubenstein
(718) 590-5258
Michael K. Eidman, Esq.
Attorney for Plaintiffs
1500 Broadway, 21st Floor
New York, NY 10036
(212) 489-0500
Kenneth Thompson, J.
Defendants' motion for an Order pursuant to CPLR § 3212 granting
summary judgment is granted as to Plaintiffs' false arrest, false imprisonment, malicious
prosecution is granted.
Plaintiffs' cross-motion for an Order pursuant to CPLR § 3025(b) amending
their Complaint to replead their 42 U.S.C. § 1983 is granted.
Factual Background
[*2]
The pertinent facts giving rise to this matter
occurred after Mr. Hoberman was pulled over for traffic violations, and issued two summonses
for failing to stop at a sign and making an illegal left-hand turn. Officer Ganzenmuller admits
that after he returned Mr. Hoberman's insurance, license and registration, and had proceeded to
return to his vehicle, Mr. Hoberman made a comment that caught his attention. (Ganzenmuller
EBT at 20:24-25; 21:2-4.) According to the Officer, Mr. Hoberman was sitting in his van, with
the door closed and the window open, when he stated to the Officer, "what, no f__cking common
courtesy," (S. Hoberman EBT at 19:22-24), which may have related to Mr. Hoberman's effort to
avoid the ticket by showing the Officer a gold shield and a PBA card. (See Id. at
20:12-15 (stating that "[the officer] might be able to give me a little courtesy and understanding
that I'm lost and that I'm a good guy. A lot of my friends are police officers, maybe they could
help me instead of hurting me.").)
It was this comment—uttered by an understandably irate motorist at the
cessation of a traffic stop—that prompted Officer Ganzenmuller to engage Mr. Hoberman
by, in essence, asking him to repeat himself as he approached his van. (Ganzenmuller EBT at
23:15-25.) The Officer claims that Mr. Hoberman became agitated during this exchange and
tried to punch him through the open window. (Id. at 24:12-19.) This led to a scuffle
between Mr. Hoberman, and Officer Ganzenmuller and his partner, which resulted in Mr.
Hoberman being tasered and arrested. Mrs. Hoberman was also arrested for interfering with her
husband's arrest. She claims that she was screaming at the officers to let her husband go. The
officers claim that she became belligerent, and slapped and punched them.
Mr. Hoberman was charged with Obstruction of Governmental Administration,
Assault with Intent to Cause Physical Injury, Resisting Arrest, and Disorderly Conduct: Fight
Violent Behaviour. Ms. Hoberman was charged with Obstruction of Governmental
Administration, Second Degree Harassment-Physical Contact, Disorderly Conduct:: Fight
Violent Behaviour. Mr. Hoberman was convicted of Disorderly Conduct, and his wife was
convicted of Second Degree Harassment.
Arguments
Plaintiffs instituted this lawsuit based on claims for: false arrest; false imprisonment;
malicious prosecution; Defendants' failure to train, supervise, control, instruct and employ its
officers; loss of service; and civil rights violations based on excessive force. Defendants are
moving for summary judgment on: 1) the false arrest, false imprisonment; and malicious
prosecution claims based on Plaintiffs' guilty pleas; 2) Mrs. Hoberman's excessive use of force
claims because she was never touched by any Officers; 3) Mr. Hoberman's excessive use force
claims because the force used was reasonable; 4) Plaintiffs' civil rights claims on the ground that
a "policy or custom" was not identified; and 5) the negligent training, supervision, control,
instruction and employment claims because the Officers were acting within the scope of their
employment. Since Plaintiffs are cross-moving to amend their civil rights claims, the Court will
not address Defendants' arguments that Plaintiffs have failed to make out a prima facie
case in that aspect.
Convictions Bar Relief
Given that both Plaintiffs were convicted before a Judge for violations stemming
from the above arrests they are barred from seeking redress for false arrest, false imprisonment
and malicious prosecution. "The plaintiff[s'] conviction conclusively established probable cause
for [their] arrest[s], thus negating an essential element of [their] cause of action sounding in
malicious prosecution, and establishing the respondent's affirmative defense to the causes of
action sounding in false arrest and false imprisonment." Bennett v. NYCHA, 245 AD2d
254; see also Holmes v. New Rochelle, 190 AD2d 713, 714 (holding that "once probable
cause has been established, causes of action to recover damages for false arrest, false
imprisonment, and malicious prosecution do not lie"); Campagna v. Arleo, 25 AD3d 528, 531 (stating that "claims based
on theories of false arrest and false imprisonment, were unquestionably barred by the
defendants' respective guilty pleas").
Excessive Use of Force
The numerous inconsistencies between the parties'
account of the incident at issue precludes this Court from granting summary judgment to
Defendants on Plaintiffs' excessive force claims. See, e.g., Harvey v.
Brandt, 254 AD2d 718, 719 (holding that "in excessive force cases generally, the fact
intensive inquiry of whether a particular use of force was reasonable is best left for a jury to
decide'."); Tomaino v. State of NY, 22 Misc 3d 1013, 1018 (holding that "resolution of
excessive force claims may depend upon an assessment of witness credibility and the weight to
be ascribed to the evidence by the trial court in resolving factual disputes"); Landy v.
Irizarry, 884 F. Supp. 788, 797 (stating that "[a]s a general matter, the fact intensive inquiry
of whether a particular use of force was reasonable is best left for a jury to decide"). Indeed, the
triable issue of whether Defendants' use of force was reasonable depends on whether the Court
believes their stories regarding the proceeding circumstances of the event. This requires the
Court to engage in credibility determinations, which are beyond its purview on a motion for
summary judgment. See, e.g., Ferrante v. American Lung Ass'n, 90
NY2d 623, 631 (holding that "[i]t is not the court's function on a motion for summary judgment
to assess credibility"); Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439, 441
(holding that "[t]he court may not weigh the credibility of the affiants on a motion for summary
judgment unless it clearly appears that the issues are not genuine, but feigned"); S. J. Capelin
Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 (holding that "[o]n a motion for
summary judgment the court is not to determine credibility, but whether there exists a factual
issue, or if arguably there is a genuine issue of fact").
Scope of Employment
Since Defendants have acknowledged that the named
Officers were working within the scope of their employment when this claim arose, Plaintiffs'
may not maintain their action for negligent training, supervision, control, instruction and
employment as a separate, distinct cause [*3]of action.
See, e.g., Karoon v. NYCHA., 241 AD2d 323; Ashley v. City of
NY, 7 AD3d 742; Rossetti v. Board of Educ., 277 AD2d 668, 670 (explaining that
"if the employee was not negligent, there is no basis for imposing liability on the employer, and
if the employee was negligent, the employer must pay the judgment regardless of the
reasonableness of the hiring or retention or the adequacy of the training").
Amend the Complaint
Plaintiffs somewhat acknowledge that their 42 U.S.C.
§ 1983 claims were not sufficiently pled. As such, they seek to amend the Complaint to add
allegations regarding Lieutenant Sedran's use of a taser on Mr. Hoberman in the face of the New
York City Police Department's Taser Policy.
In the absence of prejudice or surprise to the opposing party, leave to amend a
pleading should be freely granted unless the proposed amendment is palpably insufficient or
patently devoid of merit. Where, however, an application for leave to amend is sought after a
long delay and the case has been certified as ready for trial, judicial discretion in allowing such
amendments should be discrete, circumspect, prudent, and cautious. The court's exercise of
discretion in determining such an application will not lightly be disturbed.
Thomsen v. Suffolk County
Police Dept., 50 AD3d 1015, 1017-18.
Defendants have failed to raise any of these issues in opposition to Plaintiffs' request: Rather
than address the sufficiency of the proposed amendment, they attack the admissibility of
Plaintiffs' documentation in support of the proposed amendment. Rather than claim prejudice or
surprise based on the proposed amendment, they attempt to establish that Lieutenant's Sedran
acted in accordance with the policy. These are issues more appropriately raised and argued at
trial, not in opposition to a cross-motion to amend a pleading.
It is ORDERED that within thirty days of entry of this Order, Plaintiff
shall: 1) serve the Amended Summons and Complaint upon all Defendants; and 2) serve a copy
of this Order with notice of entry upon all Defendants and upon the Trial Support Clerk in room
217.
It is also ORDERED that Defendants will have thirty days (30) from
service of the Amended Summons and Complaint to interpose an Amended Answer.
It is further ORDERED that Plaintiffs' Note of Issue is stricken.
Finally, it is ORDERED that this case be referred to the Discovery Part to
arrange a discovery schedule solely regarding Plaintiffs' newly pled 42 U.S.C. §
1983 claims.
The foregoing shall constitute the decision and order of this Court.
[*4]
Dated: _________________
J.S.C.
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