Delanuez v City of New York

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Delanuez v City of New York 2015 NY Slip Op 32523(U) December 21, 2015 Supreme Court, Kings County Docket Number: 503696/13 Judge: Dawn M. Jimenez-Salta 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. [*FILED: KINGS COUNTY CLERK 01/28/2016 1] INDEX NO. 503696/2013 A/Ore-tf~t:c, RECEIVED NYSCEF: 02/03/2016 NYSCEF DOC. NO. 15 Al an TAS 'l'errn, Part 20 of the Supre1ne Court of the State of New York, held in and fur the County of Kings, at the Courthouse, at 360 Adams Street, Bro(iklyn, Ne>v York, on December 21, 2015. PRESENT: f-TON. DAWN IlMENEZ-SAL'l'A, Justice. - - ------ ---- -- - --- - -- ---- --- -------X ROBERTO DELANUEZ, Index No.: 503696113 Plai11liff, - against DECISION AND ORDER THE CITY Olt'NE\V YORK, DEl'. WILLIAM WAJ,DRON, SG'l·. ANTHONY LONGOBARDI, P.O. TOMAS REYES, L'J'. MICHAEL ClJLKIN, OFl<'JCE OF THE DIS1'RIC1' ATTORNEY OF KINGS COUNTY, DISTRICT Al'TORNEY CHARLES .T. HYNES, ASSTSTAN'f DISTRICT ATfORNEY LF:CIA GRJEPP,ASSISTANT DISTRIC'l' ATTORJ\'EY LEILA ROSJNI, AS&'TSTAN'I' DIS'l'RICT ATTORNEY LINDSF:Y LIERERMAN and ASSISTANT DISTRICl' ATTORNRY ERNRST ClffiM, '- /Jefc11da11t(s). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR 2219(a), of the paper~ considered ill the review of; I) Defendants City of Nev; York ("City"), Detective William Waldron ("Waldro11"), Sergeant Anthony Longobardi ("Longobardi"), Police Officer[ omas Reyes ("Reyes''), Lieutenant Michael Cu !kin ("LU lkin"), Office of the DistJi~t Attorney of Kings County ("Office of DA" or "DA"), District Attorney Charles J. Hynes ("DA Hynes"), Assistunt District Attorney f.ccia Griepp ("ADA Griepp"), Assistant District Atton1ey Leila Rosin! ("ADA Rosini"), Assistant District Attorney LiJ.1dsey Lieberman ("ADA Lieberman") and Assistant District Attorney Ernest Chcm's ("ADA Chem") Notice of Motion, dated May 22, 2014 for relief for the Defendants as follows: Office of the District Alton1ey of Kings County ("DA"or "Office ofDA''): I) For an Order purs11anl to CPLll 321 J(a)(7) in favor of the Office of the District Attorney of Kings County: a) Dis1nissing Plaintiff's Complaint on t11e lrt"ounds of Absolute linmunity Because the DA's Actions Were Proseeuto1ial and the Office <lfDA ls u Non-Suable Entity; b) Dismissing Plaintirrs Fourth Cause of Actio11 As lnsufficiently Pleaded Predi~aled upo11 lmproper Training and Supervisio11; c) Dismissing Plaintiff's l~ifth, Sixth, Seventh and Eighth Causes of Action Due to Failure to Comply with General Municipal Law Section 50-e; d) Dismissing Plain ti fl' s Seventh Cause or Action for !J1tentional Iiifliction of Emotional Distress as a Matter of La\v; and e) Dismissing Plaintiffs Reque.~t for Punitive Damages As Against Pt1blic Policy; [* 2] District Attorney Charles Hynes ("DA II)'Iles"): II) For an Order pt1rsua11t to (;PLR 321 I(a)(7) in favor of District Attor11ey Hynes: a) Disn1issing Plaintiff's Complaint 011 the Grounds of Absolute lmmllllity Because I-Iis Actions Were Prosccutorial and DA I-Iyi1e~ Cannot Be Held Liable Under Rcspondeat Superior for the Actions of the Individual Assistant District Attomeys ("ADA~"); b) Dismissing Plaintiff's .Second and TI!ird Causes of Action l:lecause DA Hyr1es ls a State-Actor, Not Subject to Liability pursuant to 42 Ui'IC ,<;ection 1983; and c) Dismissing Plaintiff's Fifth, Sixth and Seventh Causes of Action for l'ailure to Complywith General Municipal Law Section 50-e: Assistant District Attorneys Lex:ia Griepp, Leila Rosini, J,indsey J,icberman and Er11est Chem ("ADAs"): III) For an Order pursuant to CP LR 321 l(a)(7) in favor of the Individual AD As: a) Disn1issing Plaintiff's Complaint on the Gron11ds of Absolute lminunity Because Their Actions Were Prosecutorial; and b) Dismissing Plaintitt's ~-ifth, Sixth and Seventh CaLlscs of Action fur Fai!ure to Comply witl1 General Miinicipal Law Section 50-c; The City of New York ("City"): IV) for an Order p11rsuant to C'PLR 321 I (a)(7) in favor of the City: a) Dismissing Plaintiffs l'our(h Cause of Action Due to Insufficient Pleading Predicated upon Improper ]'raining ruld Supervision; b) Dis1nissing Plaintiff's Seventh ru1d Eighth Causes of Action for Failure t1> Comply \vitl1 General Municip11/ Law S'ection 50-e; c) Dismissing Jntentiona! Infliction of Emotional Distress As a Matter of Law; and d) Dis1nissing Plaintiff's Request for Punitive Damages as Against Public Policy; Detective William Waldron, Sergeant Anthony Longobardi, Police Officer Tonia-~ Reyes, Lieutcna11t Michael Culkin (collectively "lndividL1al Police Officers"): V) For an Order pursuant to CPT,R 321 I (a}(7) i11 favor of the Individual Police Ot1lccrs, Di~missing Plaintifl's Fifth, Sixth and Seventh Causes of Action for Failure to Com1,ly with General Municipal Law ,'/ection 50-e; In tl1e Alternative: VT) forru1 Order pursuant to r:PLI< 603 and 401 J, Bifurcating Plaintiff's Fourth Cause of"Actio11and Staying Any and All Related Discovery Md Trial for Eflicicncy and to Avoid Prejudice to the Individual Police Officers and AD As; and For Such Other and l'urther Relief As th.is Court Oee1ns Just and Proper; 2) Plaintiff Roberto De\antlCz's ("Delanuez") Notice of Cross Motion, dated Ap1il 17, 2015 for: a) an Order Pw:suant to CI'LR ,<;ectio11 3126, Striking Defendants' Answer Because of Failure to Appear for Court Ordered Depositions and Provide Cou1t Ordered Discovery and b) in the Alternative, for an Order, pursL1ant to CPLR Sec/ion 3124. Compelling Defendants I) to Appear for Court Ordered Depositions, ii) to Provide an Un-Redacted Copy of the DA's Filo and a Complete Copy of the Grand Jury Minutes As Well A, iii) Directing ·rhem to Comply witl1 Al! Outstanding Court Orders ·rogethcr with iv) Such Other Further and Different Relief as May Be Dee1ned Just and Proper; 3) Defendants' Reply Affinnation ru1d Opposition to Plaintiff's Cross Motion, date<l April 23, 2015, all of will ch [* 3] subn1ittcd April 24, 2015. Papers Numbered Notice of Mo lion and Aflidavits Annexed ...................... Defendants 1 [Exh. A-CJ Notice of Cross-Motion and Affidavits Annexed. ...... Plaintiff2 [Exh. A-CJ. Order to Show Cause and Affidavits ...................... . Ans1vcring Affidavits ............. ,... . ... ' ...... " .. . Replying Afiiduvit ............... . ..................................... Defendai1IB 3 [Exl1. A-0] Supplemental Affidavits .... . Exl1ibits ........... ., ......... ,, O\hcr [MemorandaofLaw] ....................... . .. Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Defendants City, Detective Waldron, Sergeant Longobardi, Police Officer Reyes, I ,ic11tenant Culkin, 0 Jllce of the District Attorney of Kings County, District Attorney Hynes, ADA Griepp, ADA Rosi.JU, ADALiebennan and ADA Cl1em'smotion is granted lo the extent tl1at the State law clain1s against the City and tl1e individual Defendants arc dismissed except thoso claims for lhlse arrest anJ malicious prosecution against tl1e City. All Murel/ claims are dismissed. Federal false arrest and 1na!icioos prosecution clain1s against the individual police ofticcrs remain [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; Del"endai1ts 3, Exh. A-OJ. Plaintiff'scro~s motio11 is denied iii its entirety [Defendants 1, Exh. A-C; Plaintiff2, &Ji. A-C; Defendants 3, Exl1. A-OJ. PROCF,DURAL HIS"fORY AND BACKGROUND Plaintiff Delanuez alleges that he was falsely arrested on June 3, 2011 in connection with a11 attempted robbery al the MetroPCS Phone Store at 1232 Broadway iii Brooklyn which occurred on May 27, 2011. According to Plaintiff, he was ide11tified as the perpetrator by the complaining witness in a li.ne-up. Plaintiff alleges that Defendants possessed a surveillance video funn !lie check cashing store at 1234 Broadway in Brooklyn that sho\.ved he was 11ot t11e perpetrator. Altl1ough Del<indants allegedly pos1;essed tl1is video, Plaintiff claims that he was charged with attempted robbery in the first degree, attempted robbery in the tl1ird degree, attempted pc tit larceny and cri111inal possession of a \veapon in t11e fourth degrees. Plaintiff alleges that Dcfe11dants failed to di"c!osc the existence of the surveillance video iu violatio11 ol"Defcndanls' obligation pursuai1t to Brady v. Maryland, 83 S.Cl. 1194 (1963). Plaintiff alleges that he remained inc!ln'eratcd until January 17, 2013 when he was released on his own recogni7.a!lCc ai1d that all the charges against 11in1 \Vere dismissed on J"ebruary 4, 2013 [Defendat1t 1, Exh. A-C; Plainti{1"2, Exh. A-C.'; Defendant 3, Exh. A-0]. Plaintiff filed a Notice of"Claim wilh the City on February 12, 2013 in \Vhich he alleged that he was falsely arrested on June 3, 2011; t11at NYPD Detective "Frank Waldron" suppressed exc11lpatory evidence and subjec\ed Plaii1tiffto an unduly suggestive line-up; and that he \vas released fi:on1 jail on January 17, 2013 and all charges against him \Vere s11bsequently dismissed 011 Febniary 4, 2013, Plaintiff asserted claims for false arrest, n1alicious prosecotio11, assault, battery and federal civil rights violations. He contended that ho suffered un~peeif1ed psycl1ological injorics [Defendant 1, Ex.11. A-C; Plaintiff2, Exh. A-C; Defendant 3, Exh. A-OJ. Plaintiff conune11ced this action by filing a Summons and Verified Complui11t with tl1e Kings Coonty Clerk on July 2, 2013. In his Complaint, Plail1tifl" alleged st1bstantially the same facts as f\u.md in l1is Notice of 3 [* 4] Claim. IIowcver, PlaintifPs Con-.plaint added as Defendants tl1e Individual Police Officers, District Attorney's ()ffice, the District Attorne)' and the Individual AD As. His Complaint udds clui1ns for negligent ai1d i11te11tional infliction of emotional distress as well as ncglige11t training, supervision ai1d retention' [Defendant 1, Exh. A-C; Plaintiff2, Exh, A-C; Defendant 3, Exh, A-0]. Dcfe11dants joined issue by serving their Ans>ver on Scpten1ber 23, 2013 [Defendant I, Exl1. A-C; P!aintiff2, Rxh. A-C; Defendant 3, Exh. A-0]. Pursuant to the .Preliminary Co11fercnce Order, dated March 31, 2014, Defe11dun\s were directed to provide tl1e detective's, District Attomey' s and criminal case files wit11in 45 duys arrcr Plaintifrs provision or an authorization unsealing these records. Plaintiff provided such authorization on April 3, 2014. PlaintiiT was Uirccted to respond to Defendants' dcn1and for discovery und inspection [Defendants 1, Exh. A-C; Plaintiff2, Ex11. A-C; Defendants 3, Exh. A-OJ. In their motion to dismiss, dated May 22, 2014, Defendants make several arguments. They contend \hat the District Attorney's ()ffice, District Attorney Hynes as well as the 1.ndividual ADAs arc entitled to dismissal ofPlaintill's complaint 011 the grotu1ds of absolu(c prosecutoria\ immunity &in<.:e their uctio11s ;ire prosecutorial. See !1nbler v. Pachtman, 424 U.S. 409 (1989); Hirshfle/d v City of New York. 253 AD2d 53 (\ '' Dept., 1999); Buckley v. Filzsimmon.,·, 509 U.S. 259 (1993); 1-u•vson v (.'ity of 1Ve>v York, (S.D.N.Y. June 13, 2002); Burns v. Reed, 500 U.S. 478 (1991); Johnson v. Kings Criu11ty District Attorney's Of/ice, 308 AD2d 278 (2"" DepL, 20(13); Barre// v. United ~'/ates. 798 F.2d 565 (2"" Circuit, 1988); Iiart111an v. Moore, 547 U.S. 250 (2006); Warner v. Monroe C'ounty, 587 F3d l 13 (2'"" Circuit 2009); Whil1nore v. City ofNe>Y York, 80 AD2d 638 (2"0 Dept., 1981), lv.dism. 54 NY2d 753 (1981) [Defendant I, Exh. A-C~; Plaintiff2, Exh. A-C; Defendant ' In his Complaint, Plai11till' clain1s: I) Firs[ Cause of Action: violation of his civil rigl1ts llllder the Fou1tl1, Fifth !l!Jd Fo1rrteenih Amendments to the U.S. Constitution based upon false arrest and i1nprisonment by the City of New York and tl1e Jndividual Police Officers; 2) Second Cause of Action: violation of his civil rights under (he l'onrth, l'ifth and Fourteenth Alnendme11\s to the U.S. Constitution b1IBed upon the malicious pro~;ecution and i11itiation of the criminul prosecution witl1out probable cause by the City of New York, Individ11al Police Officers, Office of the District Attorney ofKings County, DA Charles Hynes and the Individual AD As; 3) Third Cause of Action: violations of his civil rights under the Fourth, Fillh and l'ourleenth Amendments to tl1e U,S. Constitution based upo11 malicious prosecution and co11tinuation oftl1e ~riminal prosec11tion without probable ca\Ulc by the City ofNC\v York, the Individual Police Officers, Office of the District Attomey of Kings County, DA Charles Hynes rn1d the Individual AD As; 4) 11 ourth Cause of Action: violation of his civil right to be free froin i1nreasonable searches and prosecution without probable or reasonable cause under the FourL11 and Fourteenth Amendments to the U.S. Constitution based upon Defendants' customs, policies and pattems (Monell) by the City of New York a11d the Office of District Attorney of Kings County; 5) Fifth Cause of"Action: false arrest a11d imprisonment by the De rend ants 6) Sixth Cause of Action: malicio11s prosecution by members of the New York City Police Departn1ent and members oft11e Kings Cou11\y District Atto1ney's Office; 7) Seventh Cause of Action: 11cgligcnt and intcutional infliction of emotional harm by the Individual Police Officers, Office of the District Attorney of Kings Comity, DA Charles fiynes, and the l11dividua! AD As; and 8) Eighth Ca11sc of Action: negligent training, supervision and retention by the City of New York regarding the hiring of Police Of1lcers and Assi~tant District Attorneys [Defendants I, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Rxh. A-0]. 4 [* 5] 3, Exh. A-0]. Because he is not liable tmder respondeut superior for the actio11s of the Individual AD A's, District Attorney IIyncs is entitled lt1 dis1nissul of the complaint. ~·ee New York Counly Lmv Section 54; Ne1v York Co11nty f,aw Sec/ion 94!; New York Public (J/jicer Law Seel ion 2; Crt1wford v. Neiv York (;aunty District Attorney. 99 AD3d 600 (1" Dept., 2012). lJue to the fuel that he is a state actor, not subject to liability under 42 u:-;c ,<;ec/ion 1983, DA IIyncs argues that he is entiUed to dismissal of Plaintiffs Second and 1hird Causes of Actio11 Sec Gan v. City ofNew York, 996 F2d 522 (2"" Circuit 1993); Baez v. Hennessy, 853 F2d 73 (2,.. Circuit 1988); Will v. Micliigan Deparflnenl of Stale Police. 491 U.S. 58 (1989); Arizoaniifiir Official English v. Arizona, 520 U.S. 43 (1997) [Defendant 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendant 3, F.xh. A-0]. Because the Oishi ct Attorney's Office is a 11011-suable ei1\ity, it claims entitlement to dismissal. Sec (iuentangue v. Cily a/New York, 2010 WJ, 2612323 (S.D.N.Y. July 1, 2010) IDefcndai1ts 1, Ex.11. A-C; P!ainliff2, Exh. A-C; Defendants 3, Exh. A-0). 1·he City an<l the District Attorney's Office argue for dismissal ofPlai11tiffs Fourth Cause of Action for 42 USC' :'Iection 1983 violations because Plaintiff failed to sufficiently plead a Monell claim. A municipality may only be liable for c!ai1ns bro11ght un<lcr 42 use; Section 1983 when it causes tl1e constihitional violation. Such an action did not <lCCur i.J1 the present case. See C'ity ofCanto11 v. Ilarris. 489 U.S. 378 (1989); Monell v. Department of Socia/ Services, 436 ll.S. 658 {1978); Green v. Ciry ofNew Yol'k, 465 F3d 65 (2'"' Circuit, 2006), (,"onni,·kv. Thnmpson, 131 S.Ci 1350; Dwares v. New York. 985 F2d 94 (2'"' Circuit, 1993); Ashcroft v. Iqbal, 556 lJ.S. 662 (2009); C'ozzani v. County o(Sujji1/k, 84 AD3d 1147 (2"d Dept., 2011). PlaintifT's l'ourth Cause \>f Action is also impro1>erly predicated upon allegations of improper training aJJd supervision at the DA 's Office. See Van Kamp v. Gold1·/ein, 555 U.S. 335 {2009). 111 the alternative, if the Mo11ell claims are not dismissed, the Co1lrl sho11ld bifurcate Plaintiff~ Fouiih Ca11se of Action agai11st the City and the DA's Office in additio11 to staying any related discovery and trial for efliciency to avoid prejudice to the !J1dividual Police Officers as well as ADAs. See CPLR 401 l; C'.I'J.R 603; FRCP 42(b); Elie v. City of New York, 92 AD3d 716 (2"" De11L, 2012) [Defendants 1, Exh. A-C; Plai.J1ti!1"2, Exl1. A-C; Defendants 3, Exh. A-0], The lndivid\11\l Police O!liccrs, DA 's Offil-e, and Individual AD As argue for dismissal of Plainti!'fs Fifih, Sixth and Seve11th Cuuscs of Actio11 because they arc not named in Plaintif!'s Notice of Clainl. See Moore v. Me/eiiky, 14 AD3d 757 {3'" Dept., 2005); ,<;immons v. Board of Educa/i()n, 169 AD2d 727 (2"d Dept., 1991); l~atlner v. Planning Commission o(Vi//age of Pleasantville, 156 AD2d 521 (2"" Dept, 1989) [Defendfil!ts 1, Exh. A-C; Plaintiff2, Exl1. A-C; Defendants 3, Exh. A-0]. Tl1e City and DA's Oflice maintain that Plaintiffs Seventh and Eighth Causes of Action for negligent and intc11tional infliction of emotional har1n as well us negligent trai.J1ing, supervision and retention should be dismissed because they were not set forth in Plaintiffs Notice of Claim. See Teresia v. Cily of New York; 304 NY 440 ( 1952); All111ayer v. Cily of Neiv York, 149 AD2d 638 (2nd Dept., 1989); lJonil/a v. City o.f New Yark, 232 AD2d 597 (2"" Dept., 1996); Rai,.on v. City ofl'iew York. 5 AD3d 708 (2"~ Dept., 2004) IDefendants 1, Exh. A-C; Plaintiff2, Exh. A-C; DefendaJ1ts 3, Exl1. A-OJ. The City and the DA's Office argue for dismissal of Plaintiffs Seventh Cause of Action for intentional infliction of en1otional distress because public policy does not allow such a claim against government bodies. See Wylie v. Di.~tricl Attorney of Kings (,'01111/y, 2 AD3d 714 (2nd Dept., 2003); Lauer v. City of New Yv1-k, 95 NY2d 95 (2000); Dillon v. (;ity ofNew York, 261AD2d34 (1" Dept., 1999); .~'hapiro v. Cau111y ofNassa11, 202 5 [* 6] AD2d 358 (1" Dept., 1994) [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-OJ. Because the Individual Police Officers acted in the scope of their employment, the City contemls that Plaintiffs Eighth Cuusc of Action should be dismissed since there is no viable negligent training, supervision, and retention claim. Sec Karo on v. New York Cily Transit Ai1thority, 24 J AD2d 323 (l" Dept., 1997); Neiger v_ The Cily ofNew York, 72 AD3d 663 (2"' Dept., 2010) [Defendants 1, Exh. A-C; Plainti[f2, Exh. A-C; Defendants 3, Exh. A-0]. The City claims that Plaintiff's Eighth Cause of Action sl1ou\d be disnlis.~ed against it because the DA's 011lcc is a separate and distinct entity from the City. See 1Jro1vn '" City ofNew York, 60 NY2d 897 (1983); Williu1ns v. C:ity of New York, 114 AD3d 852 (2'' Dept., 2014); Narvaez v. C'ity qfNew York, 83 AD3d 516 (l" Dept., 2011 ); L~frenant v. Cily ofNew Yu"k, 70 AD3d 596 (l" Dept., 2010); Warner v. City of Ne•Y York. 57 AD3d 767 (2'" Dept., 200&) [Defendants 1, Exh. A-C; 1'laiI1ti11'2, Exh. A-C; Defendants 3, Exh. A- O]. The City and t!1e DA's Oflice argue for dismissal of Plaintiff's reqt1cst for punitive damages becau~e st1ch a claim is against public policy with regard to government entities. See K!vhn v NY City Police Depurl1nenl, 2 NY3d 329 (2004); S'harapata v :tOwn of r.,fip, 56 NY2<l 332 (1982); Dean'" Westchesler C'ounty DA 's Office, 119 }'Supp2d 424 (SONY 2000) [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendan(s 3, Exh. A-0]. The Court adjo1rrncd Defendants' motion to dismiss fiun1 June 30, 2014 to September 26, 2014. The 1noti<ln was further adjoun1ed on September 26, 2014 to November 21, 2014, again on Nuvcmber 21, 2014 to flebruary 13, 2015 and once again finally on February 13, 2015 to April 24, 2015 [DefendanL~ 1, Exh. A-C; Plai11tiff2, Exh. A-C; Defendants 3, Exh. A-0]. While Defendants' mution \Vas pending, discovery continued m; the case procedurally moved al(>ng. Plaintiff appeared lOr an Examination Before Trial ("EB"!"') on Jt1nc 11, 2014. DetCndants provided their response to the June 18, 2014 Preliminary Conference Order, including the Complaint Follow-Up Reports ("DD-5 '1 prepared in the cour:se of the investigation of the atteinpte<l robbery, In particular, the p()ssiblc existence of a surveillance camera at an adja~ent store (1234 Broadway) was noted on DD-5 number 6. The Court adjourned the C()mp!iai1ce Con!"erence Jion1 August 5, 2014 to September 16, 2014. At the September 16, 2014 compliance co11ferencc, the Court directed Deft.ndants to produce the DA Office's file. Althougl1 the EB"r's ofDefendnn\s \Vere scheduled, the Cou1t detcrrnined tl1at the specific dates for the EB T's of the District Attorney as well as the Individual AD A's would be decided after the rcsol1ition of Defendants' motion. Plaintiff was directed to prod11ce documentation in s11ppo1t of his claim that he was present at the MetroPCS store p1ior to the date oft11e attempted robbery [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; DetC1ldants 3, Exh. A-0]. When Defendant Detective \Va!dro11 appeared for an EB1' on September 8, 2014, he was questi()ncd by Plaintiff's counsel about the possible surveillance video from 1234 Broadway. Defendant Detective Reyes appeared for ai1 EB"!' on September !6, 2014. Defendant Detective David Paray ap1ieared for an EBT on October 7, 2014. Defu11dan( f,ieutenant Longobardi appeared for an El3T on ()ctober 22, 2014. Defcnda11t Lieutenant Culkin appeared for an EBT ()fl October 29, 2014 LDcfcndants l, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-Cl I· Defendants provided Plaintiff with tl1e Evidence Collection Team file on October 29, 2014 (Defendants 6 [* 7] I, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-(l]. At the December 9, 2014 eompliunec conference, the Court directed DetCnLlants to produce the DA Office's file. lt ordered Pluintiff to provide ru1y records in his possession, showing the tin1e of his appearance at the MetroPCS store, In the a\te111ativc, lie >Vas to provide fill aJlidavit stating that no such records were in his possession. A compliai1ce conference was scheduled for MuTch 3, 2015. On February 23, 2015, Defendants supplied PlaintiITwith a portion of the DA Office's fi!e pursuant to the Con1pliru1cc Conference Order dated December 9, 2014 [Defendants 1, Exh. A-C; Plaintiff2., Exh. A-C; Defei1dants 3, Ex\1. A-ll]. Before the adjournment of tl1e Marcl1 3, 2015 compliance cDnfcrence to May 12, 2015, Defendants provided Pluintiffwith a copy oflhc DA OJTicc's Dismissal Memorandum. On March 10, 2015, Dcfendunts provided Plaintiff with copies of two surveillance videos obtained du1ing the investigation. On March 30, 2015, Defendants provided Plaintiffi,vith a supplementu\ Tespouse Lo the December 9, 2014 Compliance Conference Order by supplying the remaining unprivileged portion of the DA Office's file fDefendants 1, Exh. A-C; P\aintiff2, f,x11. A-C; Defendants 3, Exh. A-Cl]. In his cross motion, dated April 17, 2015, 1'laintifTmairrtui.11s !hat Defendants' Ailllwer should be stricken puTsuant t<l C"J'LR Sec/ion 3126 because ofDcfendunts' fuilure to appear for Court-ordered EBT's as \'!ell as no11-provision of Court-ordered discovery. See C"PLR .<!eel ion 32! 2(j), Flynn v. Cily of New York, 101 AD3d 803, 955 NYS2d 637 (2"" Dept., 2012); Byam v. CityofNe-.,y York, 68 AD3d 798, 890 NYS2d 612 (2"" Dept., 2009); C"t1vo/a v. Perini Corp., 31 AD3d 362, 817 NYS2d 646 (2"d Dept., 2006); (,'011ch As.~ociates, Inc. v. PMCC Mo1·rgage Corp., 303 AD2d 538, 756 NYS2d 456 (2"" Dept., 2003); Pallerson v. (ireater New York C'orporalion oj·,<;evcnlh Day Adve111ists, 284 AD2d 382, 726 NYS2d 278 (2"d Dept., 2001 ); Zietz v. Wetansan, 67 NY2d 711, 490 Nf,2d 852 (1986); Mei Ya1i Zhang v. ,'){1ntana, 52 AD3d 484, 860 NYS2d 129 (2"' Dept., 2008); ,\1,1iorino v. City ofNe1v York, 39 AD3d 601, 834 NYS2d 272 (2'"' Dept., 2007); Vrilenrino v. Romero, 256 AD2d 505, 680 NYS2d 176 (2'' Dept., 1998); Cava/lino v. ,<Jansky, 251 AD2d 361, 672 NYS2d 8 l2 (2"d Dept., 1998); Boera v. Barz, 236 AD2d 349, 654 NYS2d 323 (2"" Depl., 1997); Silverio v. Arvelo, 103 AD3d 401, 959 NYS2d 175 (l" Dept., 2013). In the alternative, he requests t11at the Co11rt issue an Order, pursuant to C'I'LR ,'iection 3124. compelling Defendants : 1) to appear for Court-ordered EB T's 2) to provide an unredacted copy of(hc DA's lilc 3) to provide a complete copy of the Grand Jury minutes und 4) to comply 'vi th all oulstai1ding Court orders. See c:aracci v i\JcChe.~ney, 196 AD2d 522, 601 NY82d !69 (2"d Dept., 1993); C'PLR 32 I 2(j); Williams v. C'ity of New York, 40 AD3d 847, 835 NYS2d 717 (2"~ Dept., 20()7) [Defendant-~ 1, Exh. A-C; Plai11tiff2, Exl1. A-C; Defendants 3, Exh. A-0]. Due to incomplete discovery, Plaintiff claims un inability to properly oppose Defendants' motion because oftl1eir non-appearance at cotut-ordered depositions. Since he needs the opportunity to question Defendru1ts uho11t the circum8lanccs leading to Plaintiff's urrest, it is incumbe11t that he have the entire crucial DA file and Grand Jury min11tes. His rights have beei1 frustrated bccau8e ofDetCndanW' repeated failure~ to comply with Court orders. Conseqt1cntly, Defendants' motion to disiniss must be denied and their Answer stricken, See CPLR Section 3212(}) and CPJ,R Section 3101 (a). In the altcrnutive, he mair1tains that t\1e Court sl1ould direct Defendants to comply with all outstanding disCO\'ery, including appearing for depositions. See (,'aracci v. McChesney, 196 AD2d 522, 601 NYS2d 169 (2"d Dept., 1993); CPJ,fl 32J 2(j); J.f'il/iam.1 v. City of Ne>v York; 40 AD3d 847, 835 NYS2d 717 (2'"' Dept., 2007) [Defendants I, Rxh. A-C; Plainti11'2, Exl1. A-C; Defcndanl~ 3, Exh. A-0]. Plaintiff disagrees ahout absolute irnmunity for the DA DefCt1dants on the basis of their administrulive or investigatory uctivities concerning Plaintiff'~ prosecution. Ile argues that absolute in1mtmity is fact-based, 7 [* 8] dcpc11dITT1t upon the prosecutor's actions. ThlL~, there should be an analysis oftl1e prosecutor's role pertaining to whether the prosecutor appears as a lawyer for tl1e 8tatc in a probable cuusc hearing to obtain a wan·ant or if lie/she provides legal a\lvice to the police. Because hi; argues tl1at the Individual ADAs advised the police on the pennissibility of the investigatory metl1od, he clai.tns t11ere is no e11tillement to absolute immu11ity. Sec Buckley v. Fitzsimmons, 509 US 259 (1993); Pina1;d v. (:nunty afSujfalk, 52 F3d 1139; Burm v. Reed, 500 US 478 (199!); Stump v. Sparkman, 435 US 349 (1978); !1nbler v. Pachtman, 424 US 409 (1976); 42 U!'>'C ,'Jeelion 1983; Ka/inav. f<1etcher, 522 US 118 (1997); Ra1nos v. City of New York, 285 AD2d 284, 729 NYS2d 728 (1" Dept., 2001). Sec also L'PLll Section 3212({). Moreover, because they have never appesred for depositions, the causes of action against the OA's Office, AD As Griepp, Rosini, Llebern1an and Chem are not subject to dismissal at this time pursuant to CPLR Se~·tion 3211. Tbcrcfore, the con1plaint against the DA DcfendillltS must not be dismissed [DetC11dants 1, Exh. A-C; P!ai11tiff2, f,xh. A-C; Defendants 3, Exl1, A-0]. Plaintiff contends that his Fourth Cause of Action for Munell clain1s against the City should 110( be dismissed pursua.r1t to 42 1J,'JC ,'Jee/ion 1983 becansc the pleadings are to be liberally constn1ed. He maintains that his claims were properly pleaded since his co1npluint sufficiently indicated the rnatcrial elements ofhis civil rights cause of action agai.nst the City. As a result, tl1e City had fair notice of a custom or policy whicl1 \Vould establish inunicipsl liability 11nder 42 US'C SeGtion 1983 because ]1i~ complai11t alleged gross negligence in the failure to properly trai11, supervise and discipline its employees which resulted in injury to PlaintifT. See Mt1nell v. Depl. ofSocial Services oj lhe City o,{New York, 436 US 658 (1977); Walker v_ C'ity oj New York. 974 F2d 293 (2"" Cir..,uit, 1992); S'u/ehria v. City <Jf New York. 670 i;·_supp2d 288 (SONY 2009); /)1rvis v. Lynbrook Ptilice Dept, 224 F.Supp2d 463 (EDNY 2002); Amnesty America v. Town of West Ht1rtford. 361 l'3d 113 (2004); Leatherman v. Tarran/ (:011nty Narcotics Intelligence & Coordinariun Unit, 501 US 163 (1993); CP!,R 3013; Gentile v. C1iunty ofS1iffl!lk, 926 F2d 142 (2"" Circ11it 1991); 1'11CP Rule li{a); Pendleton v. Cily ofNev.' York, 44 AD3d 733, 843 NYS2d 648 (2"1 Dept., 2007); Bu111b1,ryv. City ofNew Yt1rk, 62 AD3d 621, 880 NY5'2d 44 (1 ~Dept., 2009); Elie v. St. Barnabas Ht>';pita/, 283 AD2d 364, 724 NYS2d 749 (1 ~Dept., 2001); CPLJl 3026 [Uefendants l, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-01. Plaintiff objects to Oefc11dants' argument about the requirement of naming the Individual Oefe11dants in his Notice of Claim, Pursuant to General Municipal Law 50-e{b), he argues no need to serve hi~ Notice of Clalln upon the Individual Defendants as a condition precedent because lhe statute does not require that t!1e names of the employees against whom claims arc asserted be eit\1er named or identified. Although his Notice of Claim fails to include the names of all the Individual Police Detectives as well as Individual ADA's, the State la\v claims should not be dismissed against Defendants DA office, ADAs Griepp, Rosini, Lieberman and Chem, City of New York, Detective Waldron, Sergeant l.ongobardi, Police Officer Reyes and I.icutenanl Culkin sin1ply because they were not identified i.t111is Notice of Claim. See General Munic1pal Law 50-e{b). See also Rodrigi1ez v. New York City Tronsit Authority, 90 AD3d 552, 934 NYS2d 418 (1" Dept., 2011); ,'Jchiavone v. c:ounlyofNassau, 51 AD2d at 981, 380 NYS2d 711 (2"" Dept., 1976) [Defendants I, Exh. A-C; Plainti1'1'2, Exh. A-C; Delbndants 3, Rxh. A-0]. In their Reply A l"!innation and Oppositil1n to the Cross Moti(ln, dated April 23, 2015, Defendants submit that the State la\v c!ain1s against the City and the individually named Defendants sl1ould be dismissed except for the claims alleging false arrest and malicious prosecution agall1st the City. Only Plaintiffs federal !hlsc arrest md 1na!icious prosecution c)a;ms should rcmai11 against the Individual Police Officers. Alternatively, if the Monell clain1s ren1ain, tl1e City s11bmils that the Monell clain1s should be bifnrcated to assist i11 the expediiious resolution of this matter. Moreover, there is no basis to strike Defendants' Ans\ver because they have substantially complied witl1 all Cou1t orders, showing that any discovery delays were not 8 [* 9] attrlbutable to wilful or contumacious conduct [Defundants 1, &h. A-C; Plaintiff2, F.xh. A-C; Defendru1ts 3, Exh. A-0]. Defendants poi11t out that Plaintiff do cs nol oppose dismissal of his claims agaim;t the Office of the District Attorney of Kings County ru1d District Attorney Charles Ilynes. Ile docs not oppose the dismissal of his claims for intentional and negligent infliction of emotional distress as well as negligent training, supervision anU retention. He does not oppose the dismissal of Plaintiff's ~laim for punitive damages against the City. He does not oppose t11e bifurcation of his Munell claims against the City ift\1e Court does not dismiss it. Consequently, Defendants argue that tl1osc aspects of their motion sho1tld be granleU [Defendants 1, Exh. A-C; Plalntiff2, Exh. A-C; Defendants 3, Exh, A-0]. Defendants reiterate that the actions against the Individual ADAs must be disnllS:ied on the grounds that tl1e AD As decisio11s in presenting the case to the Grand Jury and withh0ldi11g the videotapes or other evidence from the Grand Jury are protected by absoltitc i!Illnunity from civil liability in connection with Plaintiffs prosecution. See Imbler v. Pachtman, 424 US 409 (1986); Van de Ka1np v. (iold\"lein, 555 US 335 (2009); Buckley v. Fitz~·i1nmon.1·, 509 US 259 (1993); }Jill v. (:ity ofNea' York, 45 1'3d 653 (2"' Cir. 1995); Warney v. Monroe, 587 F3d 113 (2"' Cir. 2009); Giraldo v. Kessler, 694 F3d 161 (2"' Cir. 2012); Collinsv. City of New York, 923 F,Supp2d 462 (EDNY 2013); Green v. Montgorne1y, 219 F3d 52 (2"' Cir. 2000) [Dcfe11dants 1, F.xh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-01. ·rhe Monell clai1n against the City must be dismissed because it is impro11crly pleaded. 111e complaint contains nothing bnt boilerplate allegatio11s without documenting specific instances of other misco11duct to show an actual unconstih1tional policy or custom as required. Despite these broad brush usscrtions of a cw;tom or policy, Plain ti !'f fuils to set forlh any allegations supporting thc1n. Because Plaintiff presents only legal conclusions \Vitho11t supporting fa~ts, he has failed to set forth a pla11-,iblc claim. Sec C'azzani v. County of Suffolk, 84 AD3d 1147 (2nd Dept., 2011); Jqha/ v. Ashcroft, 556 US 662 (2009). Sec also !Avt1res v. New YorA; 985 F2d 94 (2"d Cir. l 993); Leung v. City ofJ.in1• YorA; 216 AD2d t 0 (l" Dept., 1995); C"PLR 3()13; Oklaha1na Cily v. Tuttle, 471 US 808 (1985); Re)'flolds v. Guiliani, 586 F3d 183 (2"' Cir, 2007); Ricciuti v. New York City 1'ransil Author11y, 941 1'2d 119 (2°; Cir. 1991); Battista v. Rodriguez, 702 F2d 393 (2"' Cir. 1983); Connick v. Thi11npsan, 131 S.L't. 1350 (201 l)[Defendanl' I, Exh A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-0]. Defendants underscore Plaintiff's lililure to name the Individual Police Officers or ADAs or even at a minimum describe any misconduct by the ADAs in hi.~ Notice of Claim. Case law requires tl1at in order to institute a viable action against a City en1ployee, helslie must be individually named in the Notice of Claim as required by the Second Department, Appellate Division. Jfthey are not named, the Appellate Division has 1nu11dated the dismissal of Plaintiff's State law elaim10. Sec General Municipal Lmv ,)ection 50-k(J); Rattner v. Planning Commission of Village of P/easanlvl//e, 156 AD2d 521 (2"d Dept., 1989); Zwecker v. Clinch, 279 AD2d 572 {2°' Dept., 2001); ,'\111ith v. Scott, 294 AD2d 11 (2"d Dept., 2002); S'an/oro v. 1'own oj'.~'mith/own, 40 AD3d 736 (2"' Dept., 2007); Gabriel v. Cily ofiVe>V York, 89 AD3d 982 (2"' Dept, 2011); Mountain Vinv Coach Line.1·, Inc. v. Storms. 102 AD2d 663 (2"' Dept., 1984)[Defcndants 1, F,xl1. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-0]. Dcfc11dants clain1 that Plaintiff failed to suhmit a proper Aflinnation of(iood Faith in his Cross Motion to strike DetCndants' Answer and/or compel discovery. 'J"hus, the cross motion should be denied. See 22 NYCRR iJ'ection 202. l(a) ( c); Natoli v. Milt1zzo, 65 AD3d 1309 (2"' Dept., 2009); !'er/av. Daytree Custom 9 [* 10] R111/ders, Inc .. 119 AD3d 758 (2"' Dept, 2014); Matter ofGreenfield, 106 AD3d 908 (2'd Dept., 2013); Deutsch v. (;runwald, 110 AD3d 949 (2"' Dept., 2013)lDcfendants I, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-0]. Addrcssi.ng the scl1eduling of the EB T's for the Individual ADA's, Defendants point out that their motion to dismiss jJ11rsuanl to CPLR 321 J(a)(7) was filed and served 011 May 29, 2014. The Individual AD A's were not ordered to appear for EBT's in two subseqt1cnt co1npliancc conference orders. In fact, Plaintiff agreed to hold the EBT's of the Individual ADA's in abeyance until Defendants' motion to dismiss \Vas resolved. Since th.is agreement was i11corporated into a Court Order, the Individual AD A's were tmder 110 obligation to appear for EBl''s prior to t11e resolution ofDefcndaJ.1ts' motion. See CPLR 3214(b); Shields v. Carbonne. 78 AD3d 1440 (3"' Dept., 2010); Decision/Order of the !Ionorable Da1vn Jimenez-Sa/la, King.~ Co1mty Su1irerne Justice. dated September 16, 2014 [Deiendants I, Exh. A-C; P1aintiff2, Exl1. A-C; Detendants 3, F.xh. A-0]. Defendants refute Plaintiffs argu1nent pursuant to CPJ,R 321 l(d) that there may be facts essential to justify opposition to their motion but those facts arc not available. DefCndants contend that 1nere specu!atioo that some piece ofinfom1alion may be uncovered through discovery is insufficient to postpone consideration of a disposilivc moti1>n. See Yorktown Sq11are Associales v. Union Dime ,'iavinr;s Bt1nk, 79 AD3d 1040 (2"' Dept., 1981); Marshall v. Colvin Motor Paris, Inc., 140 AD2d 673 (2"" Dept., 1988); Cassidy v. Caunly ofNa,,,,.au, 146 AD2d 595 (2"' Dept., 1989). Plaintiffhas not demonstrated that additional discovery will yield the facts necessary to oppose their motion to dis1ni8~. Defe11dants have provided Plaintiff\vit11 all non-privileged portions of the DA O!llce'-~ file wit\1 redactions ofperso11al infor1nation, including the dis1nissal me1norand11m which details the actions the DA's Office took during the course oft!1e criminal proceeding. Plaintiff fails to demonstrate h<)W EB T's of the Indivi<lual ADA 's or an un-redacted copy of the District Attorney's file will uncover additional inforrnatio11 not contained iu the DA Office file a11d dismissal memorandu1n already i11 Plaintifrs posses~ion [Defendants 1, E.xh. A-C; Plaintiff2, Exh A-C; Defendants 3, Exh. A-0]. Defendants insist that their Answer sho1tld 11ot be stricken because Plaintiff has failed to denionstrate any sufficient conduct bytl1em lo \Varra11t striking it. Sec 11oug Kanr; Wang v. Chien-Tsting Lin, 94 AD3d 850 (2"' Dept., 2012); C'PLR 3126; Mylonas v. Town of Brookhaven, 305 AD3d 561 (2"' Dept., 2003); C'ofucti v. .Jennifer Convertibles, 283 AD2d 224 (1" Dept., 2001); Joseph v. Roller Castle Ltd.. 100 AD2d 839 (2"' Dept., 1984). 'fhey provided Plaintiff with a!! records fron1 the New York City Police Department (the detective's file i11 addi!ion to tl1e Evidence Collection Team file) as \\'ell us all no11-privileged portions oft11e DA's file. Any <.Ie!ay in its provisi<ln was 11either wilful nor contumacious. The Individual Police Officers as well as fill additional police officer have all appeared for Cornt-ordered Ell T's. With Plaintifrs co11senl, the Court ordered in abeyance the EB T's of the h1dividual AD A's 1111til resolution oi'Defc11dants' 1notion. Thus, Defendants have not violated any Court orders pertaining to EB T's of Individual AD A's. Moreover, Plaintiff was >veil aware of t11e existence of both survcil!ai1ce videos du1ing the EBT of Detective Wuldron on Septen1ber 8, 2014 when 11\.~ attorney questioned him about the surveillance videos fro1n 1234 Broad,vay [Defendants l, Exh. A-C; Plaintiff 2, Exh. A-C; Defendants 3, Exh. A-OJ. Defendants have never been ordered to provide the Grand Jury n1inutes to Plui11tiff. Moreover, Plaintiff has not moved to unseal tl1e minutes. Pursua11t to C'ri1ninal Procedure Lmv Section 190_25(4), Grand Jury 1niuutcs cai1 only be unscaled by Court order at the Court's discretio1i. See People of the Stare of!•ie•v York v. Di Napoli. 27 NY2d 229 (1970). The usual practice is to nlakc a motion to unseal the: Grand Jury minutes on 11otice to the movi_ng party's adversary and the District Attorney's Office. In order to obtain disclosure of the Grai1d Jllry mi11utcs, the moving party must sho"' a compelling a11d particularized need. See Nef~·an v. Mollen, 175 AD2d 518 (3'' Dept., 1991 ); Jn re District Attorney ofSuffolk County, SS NY2d 436 (! 9S3). A showing of 10 [* 11] mere relevance l.~ insulTicienl. Since Piaintill'has not moved to unseal tl1t: Grand Jury minutes, his cross motion mt1st be denied lDcfendants l, Exl1. A-C; P!aintiff2, Exh. A-C; Defendants 3, Exh. A-0]. COURT RULINGS' '!"his Court grants Defendants City, Detective Waldron, Sergeant Longobardi, Police Officer Reyes, l,leutcnant Culkin, Office of !he J)istrict Attorney of Kings County, District Attorney Hynes, AD As Gricpp, Rosin~ Lieberrnan and Chent's motion to the extent tl1at t11e State law claims against the City and the individual Defendants arc dismissed except for those claims for false arrest and malicious prosecution against the City. All Mon·e// claims are dismissed. Federal false arrest and malicious prosecution claitns against the Individual Police Officers remain [Defendants I, Exh. A-C; Plaintiff2, Ez;h. A-C; Defendants 3, Exh. A-0}. Plaintiff's cross motion for an order pursuant lo C'PLll 3126 t<> strike DelCndants' an~\VCr for failure to provide Court ordered discovery, or i11 t11e alternative, for an order pursuilJll to CJ'f,R 3124 compelling Defendants to appear for Court ordered depositions and to provide an un-redacted copy oftlie DA's file as well iL~ a cornplete copy oftl1e Grand Jt1ry minutes is denied in its e11tircty [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-OJ. 111e ()ffice of the District Attorney of Kings County, District Attorney Hynes and the Individual AD As are entitled to absolute inm1unity because t\1eir actions were prosecutorial and the Office of the District Attorney is a no11-suablc entity. ·rh11s, their actions in presenting the case to the Grl!l1d Jury and withholding the videotapes and other evidence from the Gland Jury are protected by ab~olute in,mu11ity fi:on1 civil liability in connection with l'laintiff's proscc11tion. See l1nbler v. Pach/man, supra: Hirshfield v. C'ity ofNe>V York, supra; Buckley v. l'"ilzsi1n111ons. supra; L<nvson v. C'ity '!f Ne1v York..1·11pra; Barrell v. Uniled Stales, su1rra; llarman v_ Moore, sup1·a, lf'arney v_ Monroe Coun1y, supra; Whitmore v. Cily of Ne1v York; supra; Guentange v. City of Ne iv York, supr11. Moreover, District Attorney l-ly11es i.~ not liab!e un<lcr respondeat superior fur!~ actions of tl1c Individual ADAs. Sec New York (~ou11ty Lmv ,'/ectio11 54; New York County Law ,'Jee/ion 941; New York Puhlic Officer /,(1W Secfion 2; C"rmvford v. New York County District Attorney, supra. In addition, District Attorney Hynes is a state actor, not subject to liability under 42 USC Sec/ion 1983. See Gan v_ City of1''01v York; supra; Baez v. Ilennessy, supra; If/ill v. Michig(1n Depart111enl ofStale Police, supra; Arizoansfor Official English v. Arizona, supra_ The claims against the City arc dismissed because the DA's Olli cc is a separate and distinct entity from the City. Sec Bro1vn v. City of New York, supra; Williams v. City ofNe1v York; supru, Narvuez v. City of New York, .1·µpra; Leftenanl v_ City oj"Neiv York; supra; Warner v. City of New York, supra [Defendants 1, Exh. A-C; P!aintiff2, Exh. A-C; Delendants 3, Exh. A-0]. Plaintiff has lhlled to plead a Monell claim under 42 USC Sec/ion 1983. PlaintifT's co1nplai11t fails to document specific instances of1nisconduct to show an actual unconstitutional policy or custom. There arc only legal conclusions witl1out supporting facts. See C'ity ofC11n/on v. Jiarr is. supra; Monell v. Department of.'loeial ,)'ervices, supra; Green v. C'ity ofNe:w Yul"k. supra; f)wa!"es v. lk'W Yo1·k; supra; Ashcrofl v Iqbal, supra; C'ozzani v. c:ounty of Suffolk, supru; J,eung v. City q(J.iew York .~upra; Okl(tho1nu City v. Tuttle ..1·upra; Reyno/do· v_ Giuliani, supra; R1cciu1i v_ Neiv York Transit A111hority, supra; Battista v. Rodgriguez, supru; Connick v. Thumf!SOll, supra [Defendants !, Exh. A-C; P!aintiff2, Exh. A-C; Defendants 3, Exl1. A-0]. This Court Jlnds that there is no basis for any clai1ns predicated upon improper andfor neg!ige11t training, supervision and retention since the Defendants were acting withi11 the scope of their c1nploymcnt. See Van Kamp v. Ciold1·1ein, supra; Karoon v. New York City Tra11s1! Authority, supra; Neiger v. The C'ity ofl'-.'eli' 11 [* 12] York, supra [Del"endants 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exl1. A-0]. Plaintiff failed to name the Individtial Police Or11cers, DA's Office and the Individual ADAs in his Notice of Claim pursuant to Mr<nicipal Law Secti(>n 50-k(3), thu:; impeding ai1y investigation by Defendants. See Moore v. Melesky, supra; Si1n1nons v. Boord of Educa/ion, supra; Rat/ner v. Planning Commission r;( Village o.fl'/easantvil/e, supra; Zwecker v. Clinch, supra; ."imith v. Seo//, supra; !)'antoro v. Town ofS!nithtown, supra; Gabriel v. City of N,,-,y Yo1·k, supra; Mounlain Vieiv Coach I,ines, Inc. v. Storms, supra. In addition, he did 11ot set forth his allegations of negligent and intentional infliction of emotional hann as well a~ negligent training, supervision and retention in his Notice ofClailn. See Te restav. City of New York, supra; Al11nayer v. Cily of New York, supra; Bonilla v. City of New York, .iupra; Bairon v. City ofNe1v York, supra. Moreover, it is against public policy to bring an action for intentional inflictio11 of emotional distress as \Yell as punitive damages against government bodies. See Wylie v. District Attorney ofKings (;ounly. sup1·a; Lauer v. ('iry of New York, supra; Dillon v. City of New York, supra; ,'Jhapiro v_ County of N{/Ssau, supra; Krohn v. NY City Police !Je1iartmenl. supra; Sharapalt1 v. 1'o1vn of/slip, supra; Dean v. IVestchesler County DA 's Office, supra l Defendants !, E;;h. A-C; PlaintifT2, E;;h. A-C; Defcndat1ts 3, Exl1. A·O]. This Court finds no basis to strike Defendants' Al1s\ver. Plaintiffl1as 13.iled to demonstrate any conduct by Defcnda11ts to warrant sucl1 a striking. Defendants provided Plaintiff with ul! records from the New York City Police Department (the detective's file in addition to the E\•idence Collection ·ream file) us well as nonprivilcged portions of the DA 's file. Any delay was not wilful or contumacious. See Roug Kang Wang v. Chien-T.,anf: Lin, supra; Mylonas v. Town ofBrookhaven, supra; C!Jlucei v. Jennifer Convertibles, supr'1; .Joseph v. Roller Casile Ltd.. supra [Defendants 1, Exh. A-C; Plaintiff2, Exh. A-C; Defendants 3, Exh. A-0]. Plai11tiff's argu1nent pursuant to C'PLR 3211 (d) that further discovery may yield 13-cts essential to justify oppositio11 to Dcfc11dants' motion is unavailing. The mere speculation that so1ne piece ofinli1rmatio11 may he uncovered tlirough discovery is insufficient to postpo11e consideration of a <lispositivc motion becuusc Plaintiff l1as fuile<l lo demonstrate that additional discovery will yield the fuels necessary to oppose the motion lo dismiss. Defendants !1ave provided Plaintiff with all non-p1ivilegcd portions oftl1e DA Office's file with redactions of personal information, including the dismissal 1ne1norandum -..vhich details the actio11s the DA's Office took during the course of the criminal proceeding. Plaintiff fails to demonstrate how EB T's of the Individual AD A's or an u11-reducted copy of the District Attorney's file will uncover additional inronnation 11ot contained in the DA ()fficc file and dismissal memorandum already in Plair1tifrs possession. Moreover, the Individual AD A's EH T's \vere held in abcyai1ce until rcsolutio11 of this n1otion pursuant to this Court's Decision/Order. See Yorktown .'iquare Associa/es v. Union Dirne ,'\aving8 Bank, supra; Marsha// v Colvin Motor !'arts. Inc., supra; ('assidy v. County ofNassau. s1pra; Shields v. Carbonne, supra; Deci.iion/Order of the Honorable D<lWn Jitnenez-,'i'111a, Kings County Supreme Court Justice. doled ,'Jeplember 16, 2014 [Derendants 1, Exh. A-C; Plaintlff2, Exh. A·C; Dcfenda11ts 3, Exit. A-0]. This Court notes that Defendants have never been ordered to provide the Grand Jury minutes to Plaintiff. ln fact, Plaintiff neglected to move to 1inseal the minutes. According to (."rimint1/ Procedure law Section 190.25(4), Grand Jury min11tes can only be unsealed by Court order at the Court's discretion. See People of tlie ,'i1a1e ofNew Yu1·k v. Di N'1pt1li, supra. As Detbndants point out, the usual practice is to make a motio11 to unseal the Grand Jury 1ninutes on notice to the 111oving party's adversary and the District Attorney's Office. In order to obtain disclosure of the Gnu1d Jury minutes, the moving party must show a co1npelling and paiticularizcd need. A showing of mere relevance is ins11ff1cient. Not 011ly has Plaintiff failed to file a motion on notice to unseal the ('ITand Jury mil1utes, but he has also not de111onstrated a compelling and particularized 12 [* 13] need to do so. See Nef.~011 v. Mof/e11, supra; In re Dis Irie/ Attorney of Suffolk County, supra LDcfendants 1, Exh. A-C; Plai11tiff2, Exl1. A-C:; Defendants 3, Exh. A-0]. Based on the foregoing, it is hereby ORDERED as follows: Defendants City, Detective \Valdro11, Sergewt Longobardi, Police Officer Reyes, l.icutenant Culkin, Office of the District Attorney of Kings County, District Attorney Hy11es, ADAs G1iepp, Rosini, Lieberman and Chem's 1notion is GRANl'ED to the extent that the State law claim~ against the City and the individual Defendants are DISMISSED except for those clallns for fulse arrest and malicious prosecution against the City. All Morre// clairns are DISMISSED. l'cderal false arrest and malicious prosecution claims against the Individual Police Officers remain [!)cfcndants I, Exh. A-C; Plaintiff2, Exh. A-C.'; Defendai1ts 3, Exh. A-0]. Plaintifl's cross motion is DENIED in its entirety [Defendants l, Exh. A-(:; Plaintiff2, F.xh. A-C; Defendants 3, Exh. A-0}. This constitutes the Decision and Order of the Conrt, Date: December 21, 2015 Dcla11uez: v. The City of New York et ul (#503696/13) A TA Hon. av1n Jim:oriez-Saita Justice of the Supreme Court ~ :' 13

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