Persaud v City of New York

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Persaud v City of New York 2015 NY Slip Op 31552(U) July 13, 2015 Supreme Court, Bronx County Docket Number: 303266/10 Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jul 24 2015 Bronx County Clerk ·#"'\ rr'· ' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX { ~;>j;l<ll'*'"'' ~"(~ ---------------------------------------x SARABJEET PERSAUD, DECISION AND ORDER Plaintiff(s), Index No: 303266/10 - against THE CITY OF NEW YORK: COMMISSIONER RAYMOND W. KELLY; P.O. ROBYN KREPPEL SHIELD #05420; P.O. VINCENT TROZZI; P.O. JOHN DOES #1-20; THE INDIVIDUAL DEFENDANTS SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendant(s). ----------------------------------------x In this imprisonment, action for, excessive inter force, alia, false malicious arrest, prosecution, false and intentional infliction of emotional distress 1 , defendant 2 THE CITY 1 Plaintiff also initially pleaded causes of actions pursuant to violations of 42 USC §§ 1983, 1985, and 1986. However, this Court, by order dated September 30, 2014, dismissed all of the foregoing claims against all parties, as well as all claims - state and federal - asserted against the individually named defendants. While plaintiff subsequently moved for an order seeking reargument of the foregoing order to the extent of restoring all the state law claims against one of the individually named defendants and all of the federal claims premised on violations of 42 USC § 1983 against both individually named defendants, that motion will be decided separately. 2 By virtue of this Court's order dated September 30, 2014, the only remaining defendant is the City against whom a direct claim for negligent hiring and retention remains as well as claims for vicarious liability for the acts of its police officers in, inter alia, falsely arresting and imprisoning plaintiff. To the extent that the Court does in fact grant plaintiff's subsequent motion for reargument, in part, such Page 1 of 31 [* 2] FILED Jul 24 2015 Bronx County Clerk OF NEW YORK (the City) moves seeking an order 3 (1) pursuant to CPLR § 3025, granting it leave to amend the caption to reflect the Court's prior granting a motion by the City and other defendants, which dismissed the claims against all parties but the City; (2) pursuant to CPLR § 3025, granting it leave to amend its answer to assert that at all relevant times alleged its police officers were acting within the scope their employment with the City on grounds that the failure to admit the same was oversight; 3211 (a) (7) (3) pursuant to dismissing plaintiff's negligent hiring and retention claim on grounds that the City admits that any of the officers alleged to have wronged plaintiff were acting within the scope of their employment with the City such that the complaint fails to state a cause dismissing of action; plaintiff's emotional distress, (4) claim negligence, pursuant for to CPLR intentional § 3211 (a) (7) infliction of and gross negligence inasmuch as such causes of action either are not cognizable under the facts pled or cannot be asserted against the City as a matter of law; and (5) pursuant to CPLR § 2221 granting renewal of this Court's order dated September 30, 2014 because to the extent that the Court decision has no bearing on this one. 3 While the City also moved seeking an order granting it summary judgment with respect to plaintiff's causes of action for false arrest, false imprisonment, malicious prosecution, and abuse of process, insofar as plaintiff within his affirmation, by counsel, consenting to dismissal of those claims, other than noting their dismissal, the Court shall not endeavor to substantively discuss this portion of the City's motion. Page 2 of 31 [* 3] FILED Jul 24 2015 Bronx County Clerk ordered that the City produce personnel/disciplinary records for an in-camera review such disclosure is palpably irrelevant if the Court dismisses plaintiff's negligent hiring and retention claim. Plaintiff opposes the City's motion to the extent it seeks leave to amend the caption, averring, inter alia, that the City's _proposed caption fails to reflect the parties which he now seeks to add to this action as well as at least two original defendants Robyn Kreppel (Kreppel) and Vincent Trozzi (Trozzi) - against whom, by way of his separate to motion reargue, he seeks restoration of certain claims. Plaintiff also opposes the City's motion to amend its answer, averring that the City fails to demonstrate that the proposed amendment has merit. To that end, plaintiff opposes the City's motion to dismiss his negligent hiring and retention claim insofar as dismissal of the same hinges on the grant of the City's motion to amend. Similarly, plaintiff opposes the City's motion for renewal on grounds that absent the dismissal of the negligent hiring and retention claim, such records are discoverable. Lastly, plaintiff opposes the City's motion seeking dismissal of his claims for intentional infliction of emotional distress, negligence and gross negligence, averring that while the former cause of action is barred against individual the City defendants it is because not some similarly of these barred claims against remain actionable by virtue of his consent to dismissal of his causes of action for false arrest, false Page 3 of imprisonment, 31 ~nd malicious [* 4] FILED Jul 24 2015 Bronx County Clerk prosecution. Plaintiff also cross-moves seeking an order pursuant to CPLR § 3025 granting him leave to amend his complaint to add five new defendants, all of whom are police officers allegedly involved in plaintiff's arrest, and to assert a cause of action pursuant to 42 USC § 1983 against them and the City. Plaintiff asserts that leave to amend is warranted because any delay in seeking to amend was precipitated by the City's failure to provide discovery identifying the proposed additional defendants. The City opposes plaintiff's cross-motion on grounds that the claims against all of the proposed defendants are barred by the applicable three-year statute of limitations and plaintiff fails to establish that the relation back doctrine applies. Moreover, the proposed claim against the City pursuant to 42 USC § 1983 is so bereft of the requsite specifiGity that it also fails to state a cause of action. For the reasons that follow hereinafter the City's motion is granted, in part and plaintiff's cross-motion is denied. This is an action for alleged personal injuries stemming from plaintiff's false arrest, false imprisonment, excessive force, malicious prosecution, and violations of multiple federal statutes. Within his complaint, plaintiff alleges that on February 14, 2009, while in the vicinity of 167th Street and Morris Avenue, Bronx, NY, he was falsely thereafter, arrested, falsely imprisoned, assaulted maliciously prosecuted by defendants. Page 4 of 31 and, Plaintiff's [* 5] FILED Jul 24 2015 Bronx County Clerk first eight causes of action - as initially pleaded - are premised on state law and with the exception of the negligent hiring and retention claim, which is solely asserted against the City, claims are asserted against all defendants. all Plaintiff's last two causes of action are for violations of his rights under the United States Constitution. More specifically, plaintiff alleges that defendants violated 42 USC§§ 1983, 1985(3), 1986, and 1988. By way of history, on September 30, 2014, this Court granted a motion by thereby, the City and then dismissing all claims defendants against Trozzi Troz zi and Kreppel, and Kreppel and dismissing all claims premised on federal law as asserted against the City. Within the same order, the Court also denied plaintiff's cross-motion seeking leave to amend his complaint to assert and/or amplify his claims premised on federal law. The City's Motion Seeking Leave to Amend the Caption and its Answer Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay in seeking the proposed amendment (McMcaskey, Davies and Associates, Inc. v New York City Health & Hasps. Corp, 59 NY2d 755, 757 [1983]; 44 NY2d 934, 935 [1978]). Delay, Fahey v County of Ontario, however, in seeking leave to amend a pleading is not in it of itself a barrier to judicial leave to amend, instead, "[i]t must be lateness coupled with significant prejudice to the other side, the Page 5 of 31 [* 6] FILED Jul 24 2015 Bronx County Clerk very elements of the laches doctrine" (Edenwald Contracting Co. v City of New York, 60 NY2d 957, 958 [1983]. A failure to adequately explain the delay in seeking to amend the pleadings, if coupled with prejudice, will generally warrant denial of a motion to amend a pleading. Even if there is no prejudice resulting from the proposed amendment, however, before leave is granted, it must be demonstrated that the proposed amendment has merit (Thomas Crimmins Contracting Co., [ 198 9] ["Where a Inc. v City of New proposed defense York, 74 NY2d plainly lacks merit, 166, 170 however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore, properly denied."]; Herrick v Second Cuthouse, Ltd., 64 NY2d 692, 693 [1984] [Court concluded that defendant could amend its answer when the amendment would not prejudice plaintiff and where the amendment was found to have merit]; Mansell v City of New York, 304 AD2d 381, 381-382 [1st Dept 2003]). Thus, when seeking to amend a complaint the plaintiff must proffer evidence establishing that the proposed amendment has merit (Curran v Auto Lab Serv. Ctr., 280 AD2d 636, 637 [2d Dept 2001]; Heckler Elec. Co. v Matrix Exhibits-N.Y., 278 AD2d 279, 279 [2d Dept 2000]) and the motion to amend should be granted "unless the insufficiency or lack of merit is clear and free from doubt" (Noanjo Clothing v L&M Kids Fashion, 207 AD2d 436, 437 [2d Dept 1994]; Weider v Skala, 168 AD2d 355, 355 Page 6 of 31 [* 7] FILED Jul 24 2015 Bronx County Clerk [1st Dept. 1990) [Court held that plaintiff's proposed amendment to include a tortious interference claim was legally insufficient and was not meritorious. Consequently, the motion seeking leave to amend the complaint to assert that cause of action was denied]). Moreover, leave to amend a unless the proposed amendment, complaint will as pled, not be granted establishes a cause of action (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005]; Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003]; Davis & Davis v Morson, 286 AD2d 585, 585 [1st Dept 2001]). Since the court must examine the proposed pleading for patent sufficiency, it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion (Loehner v Simons, 224 AD2d 591, Department 591 Store, Trucking Corp. [2d Dept 1996]; 220 A.D.2d 474, Branch v Abraham and Strauss 476 v Stoll Packing Corp., [2d Dept 1995]; 12 AD2d 639, 640 Goldner [2d Dept 1960]). Like a motion seeking leave to amend a complaint, a motion to amend a caption ought to be granted [i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Clarke v Laidlaw Transit, Inc., 125 AD3d 920, 922 [2d Dept 2015]). The City's motion seeking leave Page 7 of 31 to amend the caption is [* 8] FILED Jul 24 2015 Bronx County Clerk denied. Trozzi Here, the City seeks leave to amend the caption to omit and Kreppel as defendants on grounds that dismissed the complaint in its entirety against them. this Court However, for reasons that are more fully discussed in a separate decision dated the same date as this one, in which the Court partially granted plaintiff's motion to reargue, the state law claim for excessive force against Kreppel and a portion of the claim pursuant to 42 USC § 1983 against both Kreppel and Trozzi have been restored. Thus, Trozzi and Kreppel remain defendants in this action and, therefore, the amendment sought by the City - the omission of Trozzi and Kreppel from the caption - is bereft of merit (see Loehner at 591; Branch at 476; Goldner Trucking Corp. at 640). The City's motion seeking leave to amend its answer to admit that at all times alleged the police officers alleged to have injured plaintiff were acting within the scope of their employment with the City is hereby granted. pleading shall be freely As noted above, leave to amend a granted absent prejudice or surprise resulting directly from the delay in seeking the proposed amendment (McMcaskey, Davies and Associates, Inc at 757; Fahey at 935), assuming, of course, that the proposed pleading is annexed to the motion seeking such leave (Loehner at 591; Branch at 476; Goldner Trucking Corp. at 64 0) , and that the same has merit (Thomas Crimmins Contracting Co. at 170; Herrick at 693; Mansell at 381382). Page 8 of 31 [* 9] FILED Jul 24 2015 Bronx County Clerk Here, the Court need look no further than plaintiff's original complaint to determine that the City's proposed amendment has merit and that plaintiff cannot be prejudiced by the delay in seeking leave to amend the complaint to admit that the police officers who purportedly wronged the plaintiff were, at all times, acting within the scope of their employment with the City. Indeed, plaintiff's complaint is replete with allegations that the police officers with whom he came into contact, which contact gives rise to the instant action, were officers. acting Thus, in their official capacities as police not only is this evidence of the merit of the City's proposed amendment but it belies any claim of prejudice. Similarly, insofar as the Court previously denied the City's application to dismiss the negligent hiring and retention claim asserted by plaintiff - which relief was sought on grounds that the City purportedly admitted that the foregoing officers were acting within the scope of their employment with the City - plaintiff cannot credibly claim surprise by the instant application to amend the City's answer. Thus, hereby granted and the leave to amend the City's answer is City's third proposed answer is deemed served and accepted. The City's Motion Seeking Dismissal for Failure to State a Cause of Action On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) all allegations in the complaint are deemed to be true (Sokoloff v Page 9 of 31 [* 10] FILED Jul 24 2015 Bronx County Clerk Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). fact, In the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994] the pleading has a [" (T)he criterion is whether the proponent of cause of action, not whether he has stated one. "] ) . CPLR § 3013, states 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. As such, a complaint must contain facts essential to give notice of Page 10 of 31 [* 11] FILED Jul 24 2015 Bronx County Clerk a claim or defense (DiMauro v Metropolitan Suburban Bus Authority, 105 AD2d 236, 239 [2d Dept 1984]). Vague and conclusory allegations will not suffice (id.); Fowler v American Lawyer Media, Inc., 306 AD2d 113, 113 [1st Dept 2003]); Shariff v Murray, 33 AD3d 688 (2nd Dept. Dept 19 9 8] ) . conclusory, 2006); Stoianoff v Gahona, 248 AD2d 525, 526 [2d When the allegations in a complaint are vague or dismissal for failure to state a cause of action is warranted (Schuckman Realty, Inc. v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Chapter, Local No. 852, Civil Service Employees Association, Inc., 95 AD2d 800, 800 [2d Dept 1983]). The City's motion seeking dismissal of plaintiff's negligent hiring and retention claim is hereby granted insofar as such claim is barred when, as here, the City admits that all of its employees sued by plaintiff and/or whose conduct is alleged to have injured him, were, at all times, acting within the scope of their employment with the City. An employer is liable under a claim that he negligently hired and/or retained and employee if the employer places the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee (Sheila C. v Pavich, 11 AD3d 120, Bullit Courier Service, Inc., 129 [1st Dept 2004]; Detone v 140 AD2d 278, 279 [1st Dept 1988]). Page 11 of 31 [* 12] FILED Jul 24 2015 Bronx County Clerk Thus, a cause of action for negligent hiring and retention requires proof that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury alleged (Sheila C. at 129; Gomez v City of New York, 304 AD2d 374, 374-375 [1st Dept 2003] Bellere v Gerics, 304 AD2d 687, 688 [2d Dept 2003]). However, "[g]enerally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the negligence under a theory of respondeat superior, employee's no claim may proceed against the employer for negligent hiring or retention" (Karoon v New York City Tr. 1997]; Medina v City of New Auth., 241 AD2d 323, 324 [1st Dept York, 102 AD3d 101, 108 [1st Dept 2012]). Here, while the complaint pleads all the requisite elements of a negligent hiring and retention claim, because this Court has, as noted above, granted the City leave to amend its answer to admit that all of the police officers which plaintiff alleges wronged him 'were acting within the scope of the City's employment, the complaint fails to state a cause of action as to the foregoing claim. The City's motion seeking dismissal of plaintiff's claim for the intentional infliction of emotional distress is granted insofar as this cause of action is insufficiently pleaded and because such a cause of action is bared against the City, municipality. Page 12 of 31 [* 13] FILED Jul 24 2015 Bronx County Clerk To establish a cause of action for intentional infliction of emotional distress, it must be proven that (1) defendant committed extreme and outrageous conduct; the disregard of a emotional distress; substantial ( 2) with the intent to cause, or probability of causing, severe (3) that defendant's conduct caused the injury claimed; and (4) that plaintiff suffered severe emotional distress (Howell v New York Post Company, Inc., 81 NY2d 115, 121 [1993]). Similarly, a cause of action for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, "generally must be premised upon the breach of a duty owed to plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" (Sheila C. v Pavich, 11 AD3d 120, 130 [1st Dept 2004]; E.B. v Liberation Publications, Inc., 7 AD3d 566, 567 [2d Dept 2004]). Generally, whether the cause of action is one for intentional or negligent infliction of emotional distress, courts look at whether the conduct alleged is outrageous enough to warrant a finding that plaintiff has an actionable claim as a matter of law (Sheila C. at 130-131 ["Moreover, a cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by the defendants so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, intolerable in a civilized community" Page 13 of 31 and utterly (internal quotation marks [* 14] FILED Jul 24 2015 Bronx County Clerk omitted)]; Howell conduct--serves at the 121 dual ["The function first of element--outrageous filtering out petty and trivial complaints that do not belong in court, and assuring that Tomlinson' s Dillon v Conduct claim of severe City of New York, is extreme and emotional distress 261 AD2d 34, outrageous when 41 is [1st it is genuine."]; Dept 1999]). "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized corrununity" (Howell at 122; Sheila C. at 130-131). Thus, the majority of claims fail because the behavior alleged is almost never sufficiently outrageous ["Indeed, of the intentional infliction of (Howell at 122 emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous."]; 131 ["In this matter, plaintiff's allegations Sheila C. at that defendants suggested she act provocatively, and allowed her to be introduced to a purported rapist, with whom she had a later, voluntary meeting, well after she was no longer in the physical custody of defendants, simply does not rise to the level of conduct necessary to sustain either cause of action."]; Dillon at 41 ["Moreover, the alleged disparagement of plaintiffs' characters in this case simply does not rise to that standard."]). To survive dismissal, in any action alleging intentional or negligent infliction of emotional distress, the conduct alleged must be pleaded and must, on its face Page 14 of 31 [* 15] FILED Jul 24 2015 Bronx County Clerk be sufficiently outrageous (Sheila C. at 131; Dillon at 41). When the allegations comprising the claim for intentional infliction of emotional distress fall within the ambit of another cognizable cause of action, a cause of action for intentional infliction of emotional distress will not lie (Fischer v Maloney, 43 NY2d 553, 558 [1978] doctrine of emotional ["Indeed, it may be questioned whether the liability distress for should intentional be infliction applicable where of extreme the conduct complained of falls well within the ambit of other traditional tort liability, here malicious prosecution and abuse of process."]; Sweeney v Prisoners' Legal Services of New York, Inc., 146 AD2d 1, 7 [ 3d Dept 198 9] ["Moreover, a cause of action for intentional infliction of emotional distress should not be entertained where the conduct complained of falls well within the ambit of other traditional tort liability." Afifi v City of New York, (internal quotation marks omitted); 104 AD3d 712, Wolkstein v Morgenstern, 275 AD2d 635, 637 713 [2d Dept 2013]; [1st Dept 2000]). It is well settled that "public policy bars claims alleging intentional infliction of emotional distress against governmental entities." (Afifi at 713; Eckardt v City of White Plains, 87 AD3d 1049, 1051 [2d Dept 2011]; Ellison v City of New Rochelle, 62 AD3d 830, 833 [2d Dept 2009]; Lillian C. v Administration for Children's Services, York, 48 AD3d 316, 317 [1st Dept 2008]; Pezhman v City of New 47 AD3d 493, 494 [1st Dept 2008]). Page 15 of 31 [* 16] FILED Jul 24 2015 Bronx County Clerk Here, plaintiff's complaint fails to plead a cause of action for the intentional infliction of emotional distress for several reasons. First, to the extent that the acts comprising the claim are merely plaintiff's false arrest, false imprisonment, malicious prosecution and excessive force, law. the claim fails as a matter of As noted, above, a cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by the defendants so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (Sheila C. at 130-131). Here, the acts alleged are not sufficiently outrageous to satisfy the legal threshold. Second, insofar as the instant claim was premised on other separate and distinct causes of action, such as false arrest, the instant claim fails because it falls within the ambit of those other causes of action (Fischer at 558). That plaintiff concedes to dismissal of the foregoing claims does not avail him. Lastly, the instant claim must be dismissed because no such claim lies against the City, a municipality (Afifi at 713). The City's motion seeking dismissal of plaintiff's negligence and gross negligence claims is granted insofar as the instant claims cannot stand where, as here, they fall within the ambit of other causes of action, which plaintiff also a pleads. It is well settled that in this State, Page 16 of 31 in cases alleging [* 17] FILED Jul 24 2015 Bronx County Clerk police misconduct, the law does not recognize a cause of action for negligence (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 284-285 [2d Dept. 2003]). Accordingly, a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence ... but must proceed by way of the traditional remedies of false arrest and imprisonment (Antonious v 250 Muhammad, AD2d 559, 559-560 [2d Dept 1998] [internal quotation marks omitted]; Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]). sounding in false arrest, Accordingly, a cause of action imprisonment or malicious prosecution must be pled as such and the failure to do so warrants dismissal (Medina at 108 ["The cause of action alleging negligence, including negligent hiring, retention, and training, must be dismissed because no cause of action for negligent investigation lies in New York."]; negligent Johnson at 285 investigation [Court dismissed plaintiff's claim for on grounds that no such claim was cognizable under New York State law.]) As noted above, while plaintiff consents to dismissal of many his causes of action, such as his claim for false arrest, his claims for negligence are nevertheless barred because they fall within the ambit of those causes of action. As discussed above, the Court need not substantively address the City's motion seeking summary judgment as to plaintiff's causes Page 17 of 31 [* 18] FILED Jul 24 2015 Bronx County Clerk of action for false arrest, false imprisonment, malicious prosecution and abuse of process inasmuch as plaintiff concedes that those causes of action ought to be dismissed. The City's Motion for Renewal The City's motion Court's order dated produce personnel seeking renewal September records and 30, 2014 of the portion of this which disciplinary ordered histories that for it any officers alleged to have been involved in the instant incident for an in-camera inspection, is granted and upon renewal a protective order for those records is issued on grounds that such records are palpably irrelevant. It is well settled that a motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and . shall contain reasonable justification for the failure to present such facts on the prior motion (CPLR § 2221 [e] [2], [3]). Thus, [a]n application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party fails to off er a valid excuse for not submitting the additional facts upon the original application (Foley v Roche, 68 AD2d 558, 5 68 Page 18 of [1st 31 Dept 197 9] ; see also [* 19] FILED Jul 24 2015 Bronx County Clerk Healthworld Corporation v. Gottlieb, 12 AD3d 278, 279 [1st Dept 2004]; Walmart Stores, Inc. v United States Fidelity and Guaranty Company, 11 AD3d 300, 301 [1st Dept 2004]; Linden v Moskowitz, 294 AD2d 114, 116 [1st Dept 2002]; Basset v Banda Sangsa Co., 103 AD2d 728, 728 [1st Dept. 1984]. Renewal is a remedy to be used sparingly and granted only when there exists a valid excuse for failing to submit the newly prof f erect facts on the original application (Beiny v. Wynyard, 132 AD2d 190, 210 [1st Dept 1987]). In fact, renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application (Burgos v City of New York, 294 AD2d 177, 178 [1st Dept 2002]; Corporation, Chelsea 281 AD2d 252, Piers 252 Management v Forest Electric [1st Dept 2001]), and "the remedy [is unavailable] where a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, thereafter sought to move again on a different legal and argument merely because he was unsuccessful upon the original application" (Foley at 568). Notwithstanding the fore going, courts have nevertheless carved an exception to the general rule and a motions to renew will be granted even when all requirements for renewal are not met One v Mui, 38 AD3d 809, 811 grounds by 95 A.D.3d 1147 Memorial Hospital Medical [2d Dept 2007], [2d Dept Center, Page 19 of 2012]; 240 31 AD2d (Bank abrogated on other Strong v 726, 726 Brookhaven [2d Dept [* 20] FILED Jul 24 2015 Bronx County Clerk 1997]). As such, motions to renew can be granted even when the newly offered evidence was in fact movant to but never provided the known and available to the Court ( Tishman Construction Corporation of New York v City of New York, 280 AD2d 374, 376 [1st Dept 2001]; Trinidad v Lantigua, 2 AD3d 163, 163 [1st Dept 2003]; Mejia v Nanni, 307 AD2d 870, 871 [1st Dept 2003]; U.S. Reinsurance Corporation v Humphreys, 205 AD2d 187, 192 [1st Dept 1994]; J.D. Structures, Inc. v Waldbum, 282 AD2d 434, 436 [2d Dept 2001]; Sorto v South Nasaau Community Hospital, 273 AD2d 373, 373-374 [2d Dept 2000]; Cronwall Equities v International Links Development Corp., 255 AD2d 354, Inc., 355 [2d Dept 1998]; Goyzueta v Urban Health Plan, 256 AD2d 307, 307 [2d Dept 1998]; Liberty Mutual Insurance 237 AD2d 260, Company v Allstate Insurance Company, 1997]). 262 [2d Dept Renewal with new evidence previously known and available to movant - a departure from precedential case law and the statute - is, thus, warranted if the interest of justice and substantial substantive fairness so dictate Metcalfe v City of New York, Scott v Brickhouse, (Trinidad at 163; Mejia at 871; 223 AD2d 410, 251 AD2d 397, 726; Goyzueta at 307). 397 411 [1st Dept 1996]; [2d Dept 1998]; Strong at Stated differently, a motion to renew can be granted, in the exercise of the court's discretion, even when the new evidence proffered was readily available to the moving party, such that all requirements necessary for renewal have not been met - including the failure to proffer an excuse for failing Page 20 of 31 [* 21] FILED Jul 24 2015 Bronx County Clerk to provide previously previous motion outcome of the available and known Court's prior decision with the new evidence changes if considering the evidence the (Trinidad at 163; J. D. Structures, Inc. at 436). In J.D. Structures, Inc., the court granted a renewal of its prior when renewal after considering previously available evidence, but which while known to the movant, original motion (id. at 435-436). plaintiff's motion seeking it did not submit on the The court had initially denied summary judgment on grounds of an agreement according said relief because plaintiff failed to include evidence relative to the debt owed, such evidence dispositive on the motion (id). On renewal, plaintiff tendered evidence of the debt owed averring that the failure to provide the same on the prior motion was the mistaken belief that the motion would be decided favorably without such evidence (id.). The court granted renewal despite plaintiff's failure to submit previously available evidence, which was known to plaintiff on grounds that an excuse had been proffered for the failure to submit the same and because the new evidence, warranted judgment in plaintiff's favor (id.). Simiarly, in Trinidad, the court granted renewal when the same was premised upon the submission of a previously known and available expert affidavit despite the fact that no excuse was proffered for the failure to previously submit the same (id. at 163). Here, renewal is warranted because the City demonstrates that Page 21 of 31 [* 22] FILED Jul 24 2015 Bronx County Clerk new facts - not previously available - exist, which would change the outcome of the prior motion. Specifically, the only reason the Court previously ordered production of the instant records was because they were relevant to plaintiff's claim for negligent hiring and retention against the City, which on the prior motion, the Court refused to dismiss. Having now dismissed that claim, the foregoing records are irrelevant to plaintiff's remaining claims. Specifically, the only claims that remain are the claims for excessive force, respondeat superior, and punitive damages against the City and as noted in this Court's decision granting plaintiff's motion for reargument, the same claims against Kreppel and a claim pursuant to 42 USC § 1983 against Trozzi and Kreppel, any acts perpetrated in their individual capacity. limited to Thus, any discovery with respect to Trozzi and Kreppel's prior conduct would, at this point, only impermissibly bear on their propensity to cormnit the acts alleged (McKane v Howard, ["While it . may reasonably be argued 202 NY 181, 185 [1911] that testimony as to the reputation of plaintiff might be a ground for an inference as to whether or not she did the acts charged, the law has been from the earliest period that such testimony was inadmissible for that purpose."] ) . Plaintiff's Motion for Leave to Amend His Complaint Plaintiff's motion seeking an order granting him leave to amend his complaint to add five new defendants against whom he Page 22 of 31 [* 23] FILED Jul 24 2015 Bronx County Clerk seeks to assert a cause of action pursuant to 42 USC § 1983 and to re-plead the previously dismissed cause of action against the City for violation of 42 USC the § 1983 is hereby denied. proposed additional, defendants the action With respect to against them is barred by the applicable three-year statute of limitations. As against the City, the proposed amended complaint fails to state a cause of action pursuant to 42 USC As noted above, § 1983. leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay in seeking the proposed amendment (McMcaskey, Davies and Associates, Inc at 757; Fahey at 935), assuming, of course, that the proposed pleading is annexed to the motion seeking such leave (Loehner at 591; Branch at 476; Goldner Trucking Corp. at 640), and that the same has merit (Thomas Crimmins Contracting Co. at 170; Herrick at 693; Mansell at 381-382). It is well settled that a claim for violation of 42 USC 1983, requires no notice of claim (Burton v Matteliano, § 81 AD3d 1272, 1275 [4th Dept 2011]), is governed by a three-year statute of limitations (Mulcahy v New York City Dept. of Educ., 99 AD3d 535, 536 [1st Dept 2012]; Clairol Development, LLC v Village of Spencerport, 100 AD3d 1546, 1547 [4th Dept 2012]; Rimany v Town of Dover, 72 AD3d 918, 921 [2d Dept 2010]), and accrues "when the plaintiff knows or has reason to know of the injury which is the basis of his or her action" (Rimany at 921 Page 23 of 31 [internal quotation [* 24] FILED Jul 24 2015 Bronx County Clerk marks omitted]; Palmer v State of New York, 57 AD3d 364, 364 [1st Dept 2008]). It is also well setlled that while generally, an action cannot be commenced after the expiration of the applicable statute of limitations (Marino v Proch, 258 AD2d 628 628 [2d Dept 1999]), pursuant to CPLR § 203(c), "a claim asserted in the complaint is interposed against the defendant or a co-defendant united interest with such defendant when the action is commenced." fact, pursuant to the foregoing, in In our courts have promulgated the "relation back doctrine," which "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are united in interest" (Buran v Coupal, 87 NY2d 173, However, the 177 [1995] relation [internal back doctrine quotation only marks allows an omitted]). otherwise untimely claim against a party who was not timely sued to survive if it is established that (1) both claims - meaning, the one timely interposed and the untimely claim which plaintiff seeks to assert arose out of same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will maintaining his defense on the merits and; not be prejudiced in (3) the new party knew or should have known that, but for a mistake by plaintiff as to the Page 24 of 31 [* 25] FILED Jul 24 2015 Bronx County Clerk identity of the proper parties, the action would have been brought against him as well (id. at 178). Generally, parties are united in interest when a "judgment . against one will similarly affect the other" (27th Street Block Ass'n. v Dormitory Authority of State of New York, 164 [1st Dept 2002]). 302 AD2d 155, Unity of interest, under the second prong of the test, will be found where there is some relationship between the defendants "giving rise to the vicarious liability of one for the conduct of the other (Vanderburg v Brodman, 231 AD2d 146, 147148 [1st Dept 1997]; Teer v Queens-Long Island Medical Group, P.C., 303 AD2d 488, 489 [2nd Dept 2003]). Vicarious liability often hinges on control, meaning that it will be found when the person in a position to exercise authority or control over the wrongdoer can and must do so or bear the consequences (Kavanaugh v Nussbaum, 71 NY2d 535, 546 [1988]; Vanderburg at 148). united in interest subject-matter is when such "the that interest they [the Parties are said to be of the parties] parties stand in or the fall together and that judgment against one will similarly affect the other" (Vanderburg at 14 8) . Here, insofar as the acts on which plaintiff premises the claims in his proposed complaint occurred on February 14, 2009, it is clear that any action against the proposed defendants and pursuant to 42 USC § 1983, should have been commenced no later than February 14, 2012 and that the failure to do so now bars any claims Page 25 of 31 [* 26] FILED Jul 24 2015 Bronx County Clerk thereunder against the proposed defendants. to While plaintiff seeks avail himself of the benefit accorded by the doctrine as promulgated by CPLR § 203(c) 4 relation back and the relevant case law, he fails to establish entitlement to such relief. Specifically, plaintiff fails to establish that with respect to the proposed defendants, they are united in interest with the City and/or Trozzi and Kreppel. making an unsupported Such failure is fatal. averment, plaintiff fails Other than to actually establish that the proposed defendants are united in interest with tv respect v the already sued defendants because he submits nothing demonstrating that a judgment against any of the parties already sued will defendants. similarly under our law affect the proposed Notably, with respect to plaintiff's cause of action for violations of 42 US § 1983, where plaintiff must establish that the individual police officers acting under color of law, violated federal constitutional or statutory rights (Delgado v City of New 86 AD3d 502, York, 511 [1st Dept 2011] ["A complaint alleging gratuitous or excessive use of force by a police officer states a cause of action under the statute (42 USC officer."]; Morgan v City of New York, 4 § 1983) 32 AD3d 912, against that 914-915 [2d Plaintiff erroneously relies on CPLR § 203(f) in seeking leave to add five new defendants. However, 203(f) and the factors giving rise to its applicability governs the interposition of new claims against the same party such that otherwise time barred claims could be deemed timely when they relate back to already timely asserted claims. Page 26 of 31 [* 27] FILED Jul 24 2015 Bronx County Clerk Dept 2006] ["The complaint states a cause of action for violation of the decedent's Fourth Amendment rights pursuant to 42 USC § 1983, alleging both an unreasonable seizure and confinement of the person in the absence of probable cause."]), it could be claimed that none of the proposed defendants had control over the acts of the other already named defendants thereby obviating vicarious liability against the proposed defendants for the acts of the named defendants. Plaintiff's motion seeking to re-plead his claim pursuant to 42 USC that § 1983 against the City is denied insofar as even assuming all the allegations in the complaint are true, they nonetheless fail to state a cause of action. As established by Monell v Department of Social Services of City of New York liability under 42 (436 use § US 658 [1977]), a municipality bears 1983 only where the action by its agent "is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" (Monell at 690). Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 person, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision Page 27 of 31 [* 28] FILED Jul 24 2015 Bronx County Clerk making channels (id. [internal quotation marks omitted]). liability under 42 USC § Accordingly, municipal 1983 only lies if the municipal policy or custom actually caused the constitutional tort and not merely because the municipality employs a tortfeasor who perpetrated a constitutional tort (id. at 691). In other words, causation is an essential element to municipal liability and, thus, no municipal liability will lie under 42 respondeat superior (id.). USC § 1983 solely on a theory of Moreover, since [a] cause of action under 42 USC § 1983 exists where the evidence demonstrates that an in di vi dual has suf f erect a deprivation of rights as a result of an official policy or custom, and must be pleaded with specific allegations of fact Pang Hung Leung v City of New York, 216 AD2d 10, 11 [1st Dept 1995 (internal citations omitted)]), broad and conclusory statements, and the wholesale failure to allege facts of the offending conduct alleged, are insufficient to Accordingly, (id.). state a claim under section 1983 a motion to dismiss for failure to state a cause of action under 42 USC § 1983 should be granted where the complaint fails to plead the existence of an official policy or custom which deprived him of a constitutional right in violation of 42 USC § 1983 (Liu v New York City Police Dept., 216 AD2d 67, 68 [1st Dept 1995]), or when the complaint fails to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of which caused the constitutional tort alleged Page 28 of 31 [* 29] FILED Jul 24 2015 Bronx County Clerk (Vargas at 837; Cozzani v County of Suffolk, 84 AD3d 1147, 1147 (2d Dept 2011] ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which rights, it deprived was the wholly plaintiff of unsupported by certain any constitutional allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced.]; Board of Educ. 2002] of City of New York, R.A. C. Group, 295 AD2d 489, 490 Inc. v [2d Dept ["because the plaintiffs failed to plead the existence of a specific policy or custom which deprived them of a constitutional right in violation of 42 USC § 1983, that cause of action must be dismissed as well."]; Bryant v City of New York, 188 AD2d 445, 446 [2d Dept 1992] ["Given the complete absence of any factual allegations in the complaint regarding the alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or "ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 USC§ 1983 were properly dismissed"]). Here, much like the last time plaintiff moved for identical relief, his complaint is defective with respect to his cause of action pursuant to 42 USC § 1983 against the City. Specifically, plaintiff fails to plead the specific facts establishing that his arrest, assault, imprisonment, and prosecution were the result of a municipal custom or practice so as to state a cause of action Page 29 of 31 [* 30] FILED Jul 24 2015 Bronx County Clerk pursuant to 42 USC § 1983. The fact that plaintiff alleges, that the New York City Police department is permeated with a custom and practice of "covering up" police misconduct, or that the City "has maintained no system or an inadequate system of review of officers who withhold knowledge or give false information," is not tantamount to the identification or specification of the practice, which caused plaintiff's injury (Cozzani at 1147 ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct plaintiff pursuant of to a certain policy or custom which constitutional rights, deprived the it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced.]; factual Bryant at allegations 446 in ["Given the the complete absence complaint regarding the of any alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or "ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 USC§ 1983 were properly dismissed"]). It is hereby ORDERED that plaintiff's state law claims, except the ones for excessive force, respondeat dismissed with prejudice. superior, and punitive damages be It is further ORDERED the City is granted a protective order with respect the personnel/disciplinary records discovery demand dated January 18, Page 30 of requested within plaintiff's 2013 31 such that it need not [* 31] FILED Jul 24 2015 Bronx County Clerk produce those records. ORDERED that the an in-camera review scheduled for September 11, 2015, be hereby cancelled. It is further ORDERED that the City serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty hereof. This constitutes this Court's decision and Order. Dated : July 13, 2015 Bronx, New York Page 31 of 31 ( 30) days

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