Coleman v City of New York

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Coleman v City of New York 2013 NY Slip Op 31443(U) July 2, 2013 Supreme Court, New York County Docket Number: 116188/2010 Judge: Kathryn E. Freed 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. SCANNED ON 71912013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART / 3 Justke Index Number: 116188/2010 COLEMAN, UNIQUE vs . CITY OF NEW YORK SEQUENCE NUMBER : 004 INDEX NO. e D L -2." MOTION SEQ. NO. AMEND SUPPLEMENT PLEADINGS The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits MOTION DATE , were read on this motion tolfor - Affidavits - Exhibits - Exhibits IW s ) . IN W . IN W . Replying Affidavits Upon the foregoing papers, it is ordered that this motion is Dated: 7- 1 - 1 jut_ 0 2 2013 N-FINAL DISPOSITION ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION I : S GRANTED 0DENIED GRANTED IN PART 0OTHER 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCI ARY APPOINTMENT 0REFERENCE 1. CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 .................................................................. X UNIQUE COLEMAN, Plaintiff, DECISION/ORDER Index No.: 116188/2010 Seq. No.: 001 -against- THE CITY OF NEW YORK, P.O. LYNN RUGER SHIELD #26344, INDIVIDUALLY AND AS A POLICE OFFICER, P.O. ANDREW BURRAFATO SHIEDL ## 21393, INDIVIDUALLY AND AS A POLICE OFFICER, AND POLICE OFFICER JOHN DOE, INDIVIDUALLY AND AS A POLICE OFFICER, PRESENT: Hon. Kathryn E. Freed J.S.C. FILED JUL 09 2013 COUNTY CLERK'S OFFICE NEW YORK Defendants. RECITATION, AS REQUIRED BY CPLR $2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED .................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED......... ANS WEFUNG AFFIDAVITS............................................................. REPLYING AFFIDAVITS................................................................. EXHIBITS........................................................................................... STIPULATIONS................................................................................. OTHER.. ................. X-Motion) ......................................................... .( ...... 1-3 ......... ..................... ..................... .........5 .......... ........ ...... 6-10 ..................... .......... .......... 4 UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Plaintiff moves for an Order pursuant to CPLRS 3025 and FRCP Rule 15, to amend and to supplement the pleadings in her Fifth Cause of Action. Defendants cross-move for an Order pursuant to CPLRtj 32 11(a)(7) dismissing plaintiffs Fifth Cause of Action alleging a MoneZZ claim 1 [* 3] against the municipal defendants; or in the alternative, for an Order pursuant to CPLR$ 603 and $4011, bifurcating plaintiffs Fifth Cause of Action for discovery and trial purposes until plaintiff succeeds in establishing civil rights violations on the part of the individual defendants; and for an Order pursuant to CPLRs32 11(a)(7) dismissing plaintiffs Fourth Cause of Action alleging negligent retention and supervision against the City and Sixth Cause of Action alleging intentional infliction of emotional distress. Factual and procedural background: The instant action is for personal injuries allegedly sustained by plaintiff during a street encounter with several police officers. According to plaintiff, on January 16,2010 at approximately 1:00 am, she was walking in the vicinity of Lexington Avenue and 118th Street in New York, with her brother and some friends. Without any provocation or apparent reason, her brother was stopped by defendant police officers, and frisked. When plaintiff pleaded with the officers to release her brother, and attempted to report the incident via phone, she was assaulted and battered by said officers. Plaintiff was subsequently arrested by P.O. Lynn Ruger and charged with Assault in the Third Degree, Obstruction of Governmental Administration in the Second Degree, Resisting Arrest, and Unlawful Possession of Marijuana. She was then taken to the 2Sh precinct to be processed. Once there, she requested medical attention and was transported via ambulance to Bellevue Hospital, where she was treated and released. She was then taken to Manhattan Central Booking. Plaintiff alleges that she was arraigned and released sometime in the afternoon on Saturday, January 16,2010, within 24 hours of her arrest. She also alleges that she was compelled to appear at approximately seven court appearances in Criminal Court, until the case against her was finally dismissed on September 8,2010. 2 [* 4] Subsequently, plaintiff served a Notice of Claim on the City on January 27, 20 10 and a Supplemental Notice of Claim on October 26, 2010. Plaintiff commenced the instant action on December 15,2010. She served her Summons with Verified Complaint on December 29,201 0 and the City served its Answer on January 10,2011. Plaintiff then served an Amended Summons and Complaint on September 23, 201 1. Additionally, after Corporation Counsel s assumption of the legal representation of Police Officers Rutger and Burrafato, an amended Answer was served on December 28,201 1. Plaintiffs EBT was conducted on May 17,2012. Positions of the parties: Plaintiff seeks to amend and supplement the pleadings in her Fifth Cause of Action which is a federal 1983 Civil Rights cause of action. Plaintiff argues that the purpose of CPLRS 15(a)(2), is to afford the parties the opportunity to amend a claim that was previously filed when significant facts were still unknown, so the controversy could be decided on the merits. She also argues that the proposed amendment would clearly satisfy the pleading objections raised by defendants and that it would not cause defendants any prejudice because discovery is incomplete, and her motion to compel discovery remains pending. A review of plaintiffs Amended Complaint reveals both State and Federal claims against the individual officers, P.O. Ruger, P.O. Burrafato, P.O. John Doe, and the City of New York. Specifically, plaintiff asserts claims sounding in assault, battery, false arrest, false imprisonment, malicious prosecution, negligent hiring and retention and the intentional infliction of emotional distress against the defendants based on the theory of respondeat superior. Additionally, plaintiffs SeventhCause of Action alleges civil rights violations pursuant to 42 U.S.C.6 1983, attributed to the individual defendants, wherein she contends that each of these violations occurred as a result of a 3 [* 5] pre-existing policy or custom which was created or followed by defendants. Plaintiff argues that a motion to amend a pleading should not be denied unless there is substantial reason to do so. She refers to and relies on the factors enunciated in Macias v. Jaramillo, 129 N.M. 578 ( Ct. App. 2000) ,which she contends should be considered by a court faced with the decision of whether to permit the amendment of a pleading. These factors include undue delay, bad faith, surprise, dilatory motives or a repeated failure to cure deficiencies. She argues that since none of these factors exist in the instant case, the Court must permit the amendment. Plaintiff further argues that a prospective amendment would also comply with the three year statute of limitations set forth by 3 1983. In reviewing a motion to dismiss pursuant to CPLRs3211 , the court must afford the pleading a liberal construction, accept all the facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see also Leon v. Martinez, 84 N.Y.2d 83, 87 [1994]; Guggenheimer v. Ginzburg, 43 N.Y.2d 268,275 [1977]; 511 I 232nd T Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 [2002]; Thomas v. Thomas, 70 A.D.3d 588 [lst Dept. 20101 ). In addressing the City s motion to dismiss plaintifrs Fifth Cause of Action, or her Monell claims, the Court turns to the allegations contained in her proposed amended complaint. Her Fifth Cause of Action is entitled AS AND FOR A FIFTH CAUSE OF ACTION FOR VIOLATION OF PERSONAL CONSTITUTION RIGHTS UNDER42 U.S.C. 1983 AGAINST THE CITY OFNEW YORK, and it states in pertinent part: That the defendant City caused or created a policy and/or custom, and acted with deliberate indifferenceto patterns and/or police practices which included illegal seizures; excessive or arbitrary 4 [* 6] use of force; illegal use of police equipment; destruction of evidence; intimidation of witnesses; illegal arrests; failing to follow police guidelines; failing to monitor or discipline police misconduct; failing to gather evidence when allegations of police misconduct are involved; condoning a code of silence within the police department regarding misconduct; failing to take police reports of illegal conduct; failing to properly supervise, train, investigate or discipline its officers; any and/all of the above contributing to plaintiffs false arrest, and prosecution, and injuries. Defendants argue that plaintiffs purported Monell claim asserted in her Fifth Cause of Action alleging various civil rights violations, warrants dismissal pursuant to CPLRg 321 1(a)(7), for failure to state a claim. In order to assert a claim against a municipality based on the alleged tortious actions of its employees, the plaintiff must allege and plead that the alleged actions resulted from an official f f policy or custom ( Monell v. Dept. o Social Servs. o City of New York, 436 U.S.658 [1978]; Leftenant v. City of New York, 70 A.D.3d 596 [lstDept. 20101; Leung v. City o New York, 216 f A.D.2d 10 [lstDept. 19951 ). It is well settled that a plaintiff may not hold a municipality liable pursuant to 51983, under a theory of respondeat superior ( see Monell v. New York City Dept. Of Social Servs., 436 U.S. at 694 ). Rather, to hold a municipality liable under 42 USCg 1983 for the unconstitutional actions of its employees, a plaintiff must plead and prove (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right ( see Canton v. Harris, 489 U.S. 378,385 [1989]; Monell v. New York City Dept. ofsocial Servs., supra; Wilner v. Village of Roslyn, 99 A.D.3d 702 [2d Dept. 20121; Batista v. Rodriguez, 702 F2d 393[2d Cir. 19831 ). However, since the Court is not convinced that granting plaintiff leave to amend her Fifth Cause of Action, will result in any substantial prejudice or surprise to defendants, ( see CPLR 5 [* 7] §3025[b]; Edenwald Contr. Co. v. City o f N e w York, 60 N.Y.2d 957, 959 [1983] ) or that the proposed amendment is palpably insufficient or patently devoid of merit ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499,499 [lstDept. 20101 ), it will grant plaintiff leave to amend it. Defendants also seek dismissal of plaintiffs Fourth Cause of Action alleging negligence, negligent training, negligent hiring, and negligent retention. The Fourth Cause of Action states in pertinent part: That the defendant City was negligent, careless and reckless in hiring, retaining, supervising and promoting as and for its employees, the officers herein, in that said officers, as employees of the City of New York, were not qualified to be hired or retained or promoted as police officers, lacked the experience, deportment, skill, training and ability to be employed by the defendant City ; to be retained by defendant, City ; and to be utilized in a manner that each was employed on the day in question. That the defendant, City , failed to exercise due care and caution in its hiring, retaining and/or promoting practices; in that the defendant City failed to adequately investigate said officers backgrounds; adequately screen and test officers; failed to adequately monitor officers; failed to properly discipline officers who violate Patrol Guidelines; failed to properly train and retrain officers; and in that the defendant City , its agents, servants and/or employees, were otherwise careless, negligent and reckless ..... In the instant case, the City is not disputing that the police officers who were involved in effectuatingthe Plaintiffs arrest were acting within the scope of employment, which thereby renders the City responsible for any damages caused by their actions ( Knight Aff. 745). Despite this 6 [* 8] concession, the City still disavows responsibility, arguing that they still cannot be held liable for any damages caused by an employee s negligence under a respondeat superior theory As a general proposition, causes of action based upon the City s own negligence in hiring, retention, training, or supervision are viable with proof that negligence was the proximate cause of the injury alleged ( see Saarinen v. Kerr, 94 N.Y.2d 494,504 [1994]; Barr v. County ofAlbany, 50 N.Y.2d 247,257-58 [1980] ). To prevail on a negligent hiring and supervision claim, a plaintiff must show that an employer knew or should have known of the employee s propensity for the particular behavior that caused the plaintiffs injuries ( see Taylor v. United Parcel Serv., Inc., 72 A.D. 3d 573,574 [lstDept. 20101 ). It is well established that a claim for negligent hiring, training and supervision must be dismissed when an employer has conceded that its employees were acting within the scope of their employment when the alleged tort was committed (see Delgado v. Ct oflvew York, 86 A.D.3d 502 iy [lst Dept. 20101; GrifJin v. City ofNew York, 67 A.D.3d 550 [lst Dept. 20091; Karoon v. New York City Tr. Auth., 24 1 A.D.2d 323 [ 1St Dept. 19971 ). In the instant case, since the City has clearly conceded that the officers were acting within the scope of their employment at the time of the alleged incident, it is entitled to dismissal of plaintiffs Fourth Cause of Action (see Butler v. City oflvew York,15 Misc.3d 1134(A), 2007 N.Y. Slip Op. 50974(U) [Sup. Ct, Kings County, 20071 [as City s Answer denied allegation as to officer s scope of employment, plaintiff was deemed entitled to information related to the negligent hiring and training claim] ). Finally, defendants seek dismissal of plaintiffs Sixth Cause of Action alleging intentional infliction of emotional distress. Said Sixth Cause of Action states in pertinent part: 7 [* 9] That the officers , at the aforementioned date, time and location, acting in the scope oftheir employment, acted in a manner that exceeded all reasonable bounds of decency with an intent to inflict emotional distress upon plaintiff. That the plaintiff did sustain emotional distress as a result of the defendant officers conduct and the City, under the doctrine of respondeat superior. That by reason of the aforesaid, the plaintiff has been damaged in a sum exceeding the jurisdictional limits of the lower court. Plaintiffs Sixth Cause of Action necessitates dismissal because there is no evidence of conduct on defendants part that meets the threshold of outrageousness required to support such a claim ( see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 [1983] ). More importantly, it is well settled that this claim is not available against governmental entities ( see Pezhman v. Ct of New York, 47 A.D. 3d 493 [ lstDept. 20081; Ellison v. Ct of New Rochelle, 62 iy iy A.D.3d 830 [2d Dept. 2004],quoting Liranzo v. N. Y. Ct Health & Hosps. Corp., 300 A.D.2d 548 iy [2d Dept. 20021 ). Therefore, in accordance with the foregoing, it is hereby ORDERED that plaintiffs motion for leave to amend and supplement the pleadings in her Fifth Cause of Action is granted; and it is further ORDERED that defendants cross-motion is granted to the extent that plaintiffs Fourth Cause of Action is dismissed as against all defendants with the exception of Police Officer John Doe; and defendants Sixth Cause of Action is dismissed as against all named defendants; and it is further ORDERED that counsel are directed to appear for a status conference in Room /0.3,80 Centre Street, on July 30,2013 at 2:OO PM; and it is further 8 [* 10] ORDERED that this constitutes the decision and order of the Court. COUNTY CLERK'S OFFICE NEW YORK 9

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