Reynoso v City of New York

[*1] Reynoso v City of New York 2010 NY Slip Op 50568(U) [27 Misc 3d 1206(A)] Decided on April 8, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2010
Supreme Court, Bronx County

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX IA 20 Vincente Reynoso, Plaintiff,

against

THE City of New York, N.Y.P.D. DETECTIVE JULIO VASQUEZ, TAX REG No. 887081/SHIELD #3571 and "JOHN DOE'(S)", said names being fictitious and intended to denote other New York City Police Department detectives, officers, employees and/or agents involved in the actions or omissions alleged herein below, Defendants.



18281/05



APPEARENCES:

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

By: Howard Eison, Esq.

Attorney for Defendant

CITY OF NEW YORK

100 Church Street

New York, New York, 10007

(212) 788-1240

Schwartzapfel, Novick, Truhowsky & Marcus, P.C.

By: Robert B. Marcus, Esq.

Attorneys for Plaintiff

VINCENTE REYNOSO

45 West 45th Street

New York, New York 10036

(212) 921-4500

Kenneth L. Thompson, J.

Defendants', THE CITY OF NEW YORK, N.Y.P.D. DETECTIVE JULIO VASQUEZ, TAX REG # 887081/SHIELD #3571 and "JOHN DOE'(S)" ("the City"), motion for an Order pursuant to CPLR § 3212 [FN1] granting summary judgment dismissing the allegations contained in ¶¶ 10, 11 and 27-42 [FN2] of the Complaint is granted. Plaintiff has failed to allege sufficient facts to establish the elements of a Monell claim, such that tort liability may be extended to the municipality in this matter. Furthermore, paragraphs 10 and 11 of the Complaint fail to delineate cognizable claims for damages.

Factual Background

Defendant DETECTIVE JULIO VAZQUEZ ("Det. Vasquez") arrested Plaintiff for possession of two kilograms of cocaine on January 30, 1998. While awaiting trial on these charges, Plaintiff was accused of rape by his teenaged stepdaughter. Plaintiff was convicted on the drug charges on April 6, 2000. Before he was sentenced on the conviction, he pled guilty to the rape charge on May 10, 2000. His plea on the rape conviction carried a nine-year prison sentence plus five years of supervised parole, which was to run concurrently with the 15 years to life sentence Plaintiff received for the drug conviction on June 13, 2000.

Subsequent to these proceedings, Det. Vasquez was arrested, charged and pled guilty to Federal charges of robbing drug-dealers of cash and drugs in 2003. This criminal activity was quite extensive and spanned a period that overlapped the Detective's arrest of Plaintiff. Plaintiff moved to vacate his drug conviction in June 2004, an application the District Attorney's office declined to oppose, thus, it was granted. Plaintiff instituted this lawsuit in July 2005, seeking damages for false arrest, malicious prosecution, abuse of process, an unreasonably search and seizure, an invasion of his privacy, and civil rights violations pursuant to 42 U.S.C. § 1983.

Arguments

Defendants are now moving for dismissal on three grounds. First, that Plaintiff has failed to particularly plead his Monell claims. Second, that if the Court finds that he has properly stated a [*2]Monell claim, there is no evidence to support his claims. Third, that Plaintiff is barred from collaterally attacking his guilty plea via ¶¶ 10 and 11 of his Complaint, thus, he is not entitled to have that plea vacated as a damage. Plaintiff opposes the motion on the grounds that: 1) New York State courts do not require that 42 U.S.C. § 1983 claims be particularly pled; 2) there are triable issue of fact supporting his Monell claims; and 2) there is no basis to dismiss ¶¶ 10 and 11 because the allegations contained therein do not constitute a cause of action.

Brief Answer

The Court finds that Plaintiff's Complaint is insufficiently particular to give notice of how the City's alleged "policy or custom" resulted in the violation of Plaintiff's civil rights. Consequently, the allegations contained in the Third and Fourth Causes of Action in Plaintiff's Complaint are dismissed. Additionally, Plaintiff is collaterally estopped from attacking the validity of his guilty plea for the rape of his stepdaughter. As such, the allegations contained in ¶¶ 10 and 11 of the Complaint are also dismissed.

"Notice" Pleading

New York Civil Practice Law and Rules require that, "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." CPLR § 3013. And that, "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs." CPLR § 3014. Therefore, the City's argument that Plaintiff's Monell claims should be dismissed because they were not particularly pled is specious and unsupported by the law. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, et al., 507 US 163 [1993] (holding that a federal court may not apply a "heightened pleading standard" more stringent than the usual pleading requirements of Fed. R. Civ. Pro. 8(a)); see also Colon v. Bernabe, 2007 US Dist LEXIS 51981 [SD NY 2007] (finding that "[b]oth the C.P.L.R. and the Federal Rules require only a short and plain statement of the claim showing that the pleader is entitled to relief'); Brown v. Luk, Inc., 1996 US Dist LEXIS 7173, *14 [ND NY 1996] (finding that "the pleading requirements of New York's Civil Practice Law and Rules . . . are more lenient than the Federal Rules of Civil Procedure"). [*3]

Moreover, New York's "notice" requirement applies to all claims not falling under the ambit of CPLR § 3016, even those dealing with 42 U.S.C. § 1983. See Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 492 at FN 3 [2008] (stating that "section 3016(b) must require more than the notice pleading' applicable in other cases"); Rudgayzer & Gratt v. Cape Canaveral Tour & Travel, Inc., 22 AD3d 148, 153 [2d Dept 2005] (holding that "in general, a state court hearing a federally-created claim is to apply . . . state procedural' law"). Consequently, Plaintiff's allegations need only consist of facts that are plainly and concisely stated, such "to enable the court to control the case and the opponent to prepare." Foley v. D'Agostino, 21 AD2d 60, 63 [1st Dept 1964].

It is well-settled that on a motion to dismiss "[t]he court must accept the facts alleged in the complaint as true, accord the plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Kempf v. Magida, 37 AD3d 763, 764 [2d Dept 2007].

However,

[a] pleading will not be dismissed for insufficiency merely because it is inartistically drawn. Where a pleading is attacked for alleged inadequacy in its statements, the court's inquiry should be limited to whether it states in some recognizable form any cause of action known to state law. However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege whatever can be implied from its statements by fair and reasonable intendment. The question for the court is whether the requisite allegations of any valid cause of action cognizable by the state courts can be fairly gathered from all the averments.

D'Agostino, supra at 65. (citations omitted).

Monell

Plaintiff must allege that a "policy or custom" of the City caused the deprivation of his federal or constitutional rights to hold the City liable under 42 U.S.C. § 1983. See Monell v. Dept of Soc. Servs., 436 US 658, 690-91 [1978] (finding that "Congress did [*4]not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort"); see also Jackson v. Police Dept, 192 AD2d 641, 642 [2d Dept 1993] (holding that "[t]o prevail on a cause of action to recover damages pursuant to 42 U.S.C. § 1983 against a municipality, the plaintiff must specifically plead and prove (1) an official policy or custom that (2) causes the claimant to be subjected to (3) a denial of a constitutional right") (citations omitted). As such, the City's dispute centers on the adequacy of Plaintiff's Third and Fourth Causes of Action, as those are the only allegations the Court reads as sounding in municipal liability pursuant to Monell.

The Supreme Court has recognized four ways a plaintiff may show such a policy or custom. One, it may be "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipalities'] officers." Monell, supra at 690. Two, it may be "a deliberate choice to follow a course of action [which] is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cinn., 475 US 469, 483-84 [1986]. Three, it may also be "a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage' with the force of law". City of St. Louis v. Praprotnik, 485 US 112, 127, 130 [1985]. Additionally, a "claim of inadequate training will trigger municipal liability only where the failure to train amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact." See Walker v. City of NY, 974 F2d 293, 297 [2d Cir 1992].

Plaintiff claims that Det. Vasquez "falsely claimed that there was cocaine in the vehicle operated by the plaintiff" (S & C at ¶ 7), "and/or falsely claimed to have found cocaine therein" (id.). And that he "was charged, tried and/or convicted of Criminal Possession of a Controlled Substance, . . . based on the false testimony of [Det. Vasquez]." (Id. at ¶ 8.) These claims are straightforward in that Plaintiff is alleging that his search, arrest, trial and conviction were based on Det. Vasquez's false statements and testimony. The City, however, is not disputing the sufficiency of Plaintiff's claims regarding that Defendant. It is the City's contention that whatever Plaintiff is claiming that Det. Vasquez did to effectuate his purportedly unlawful search, arrest, trial and conviction, that conduct may not be imputed to the City under the auspices of Monell. And even when according Plaintiff's allegations all favorable inferences—as well as overlooking any "[l]ooseness, verbosity and excursiveness," D'Agostino, supra at 64—the Court finds that Plaintiff has failed to spell out a Monell claim against the City.

Plaintiff alleges that Det. Vasquez "admitted that he stole hundreds of thousands of dollars from narcotics dealers; 2) pled guilty to such offense[s]; and admitted that he was engaged in criminal behavior prior to arresting plaintiff." (S & C at ¶ 12.) He then claims that "defendants, their agents servants, employees and/or licensees, knew or had reason to know that defendant VASQUEZ, was corrupt and/or committing criminal acts yet, failed to properly supervise, investigate and/or take appropriate remedial action as against defendant, VASQUEZ." (Id. at ¶ 13.) This attempt at stating a Monell [*5]claim is more fully expressed in Plaintiff's Third and Fourth Causes of Action, wherein Plaintiff alleges that: his "rights have been violated . . . by defendants, their agents, servants, employees and/or licenses, who were supervisors of the detectives who violated, abused and/or deprived" Plaintiff's of his rights (S & C at ¶ 28); these "supervisors" knew that its subordinates, including Det. Vasquez, were violating Plaintiff's civil rights (id. at ¶ 29); Plaintiff was harmed because the "supervisors" "acquiesced, condoned and/or tolerated such practices and/or were grossly negligent in managing their subordinate(s), including but not limited to [Det. Vasquez]" (id. at ¶ 30); and these "interferences" resulted in Plaintiff suffering physical, emotional and pecuniary damage, including humiliation, mental anguish, embarrassment, and the impairment of his reputation in the community (id. at ¶ 31). He further alleges that the City failed: "to adequately retain, train, supervise, discipline and/or otherwise direct" its officers (id. at ¶ 35; see also ¶ 38-41 [FN3]); and "to properly sanction or discipline" its officers (id. at ¶¶ 36, 37).

Initially, the Court reads the Complaint as alleging two separate and distinct streams of "transactions and occurrences": 1) Det. Vasquez's practice of robbing drug dealers—activities that were apparently undertaken with the knowledge of at least one of the disgraced Detective's superiors—and 2) Det. Vasquez's allegedly providing false statements or testimony to facilitate Plaintiff's search, arrest, trial and conviction on drug charges. The Court cannot discern, however, from either the four corners of the Complaint or from Plaintiff's opposition to the City's motion, how the latter flows from the former, such that Monell liability may attach.

Accepting that Det. Vasquez's superiors were indeed aware of—and acquiesced to—his criminal endeavors, there is nothing in the Complaint that links this awareness and acquiescence to Det. Vasquez providing false statements or testimony in regards to Plaintiff's search, arrest, trial or conviction on the drug charges. Plaintiff neither alleges nor provides facts sufficient to show that: Det. Vasquez's superiors were aware that he ever provided false statements or testimony in order to effectuate a search, arrest, trial or conviction in any other matter besides the one at bar, see Simpson v. NYCTA, 66 NY2d 1010 [1985] (holding that "proof of a single incident of objectionable conduct by a municipality is insufficient to establish the existence of a municipal policy in the absence of any wrong which could be ascribed to municipal decisionmakers"); see also Dillon v. Perales, 181 AD2d 619 [1st Dept 1992]; he was somehow ensnared in Det. Vasquez's penchant for robbing drug dealers; or any false statements or testimony Det. Vasquez may have proffered against him was in furtherance of, or in combination with, those activities. Thus, the Court finds that Plaintiff's failure to allege more than one instance of misconduct, and to provide plain, concise statements linking the City's awareness of—and acquiescence to—Det. Vasquez's criminal enterprise to [*6]Plaintiff's allegedly tainted search, arrest, trial and conviction on drug charges, mandates that the Monell allegations be dismissed.

Collateral Estoppel

Plaintiff alleges in his Complaint that as a result of his "wrongful conviction," he was "coerced and/or compelled into pleading guilty" to the rape of his teenaged stepdaughter. He claims that he pled guilty "rather [than] go to trial on" the rape charge based on "representations made to him be defendants, their agents, servants, employees and/or licensees that if he proceeded to trial on [the rape] and was thereafter convicted, he would be sentenced consecutively rather than concurrently." (S & C at ¶ 10.) He further alleges that he "would not have pled guilty and/or would have proceeded to trial and/or would have been sentenced to a lesser terms on" the rape "but for the aforesaid wrongful conviction." (Id. at ¶ 11.) The Court interprets these allegations as an attempt to have his guilty plea to the rape of his stepdaughter vacated because it was involuntarily given. This is not a remedy, however, available to Plaintiff in these proceedings.

"In order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under NY Crim. Proc. Law § 220.60(3) or a motion to vacate the judgment of conviction under NY Crim. Proc. Law § 440.10." People v. Lopez, 71 NY2d 662, 665 [1st Dept 1988] (citations omitted). "In the absence of such a motion, however, the plea and the resulting conviction . . . are presumptively voluntary, valid and not otherwise subject to collateral attack." People v. Latham, 90 NY2d 795, 799 [1997]; see also U.S. v. Broce, 488 US 563, 574 [1989] (holding that "it is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked"). To allow Plaintiff to challenge the efficacy of his guilty plea in these proceedings "would abrogate the existing available mechanism and would undercut the validity of judgments of conviction premised on guilty pleas." Latham, supra at 799.

The foregoing shall constitute the decision and order of this Court.

Dated: _________________J.S.C. Footnotes

Footnote 1:

The City is moving pursuant to CPLR § 3212 but on the grounds stated in CPLR § 3211.

Footnote 2:

Plaintiff's Fourth Cause of Action contains three ¶ 41s.

Footnote 3:

All three ¶ 41s contained in the Fourth Cause of Action.