Hoberman v City of New York

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[*1] Hoberman v City of New York 2009 NY Slip Op 52581(U) [25 Misc 3d 1244(A)] Decided on December 21, 2009 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2009
Supreme Court, Bronx County

Scott Hoberman and Viviana Hoberman, Plaintiff


The City of New York, "John" Ganzenmuller (First Name Fictitious) and "John" Terrasi (First Name Fictitious), Defendants.


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.


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: _________________