Rivera v City of New York

[*1] Rivera v City of New York 2017 NY Slip Op 51003(U) Decided on August 11, 2017 Supreme Court, Bronx County Barbato, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2017
Supreme Court, Bronx County

Steven Rivera AND JABAR HICKS, Plaintiff(s),

against

THE City of New York, POLICE OFFICER ALEX CLAUDIO, SHIELD NO. [REDACTED], POLICE OFFICER ARIEL MARTE, SHIELD NO. [REDACTED], AND POLICE OFFICERS JOHN DOES, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendant(s).



22195/14E



Counsel for Plaintiffs: Fisher & Byrialsen, PLLC

Counsel for Defendants: New York City Law Department
Ben R. Barbato, J.

In this action for, inter alia, common law false arrest, false imprisonment, excessive force, malicious prosecution, and a violation of 42 USC § 1983 premised on the foregoing claims, plaintiffs move seeking an order granting them leave to amend their complaint to name POLICE OFFICER ARIEL MARTE, SHIELD NO. [REDACTED] (Marte) as a defendant. Plaintiffs aver that leave to amend the complaint is warranted pursuant to CPLR § 1024 because they sufficiently identified Marte in the complaint and because they diligently tried to identify her prior to commencement of this action. Defendants THE CITY OF NEW YORK (the City) and POLICE OFFICER ALEX CLAUDIO, SHIELD NO. [REDACTED] (Claudio) oppose the instant motion on grounds that plaintiffs' claims against Marte are time barred and plaintiff fails to establish entitlement to the relation back doctrine promulgated by CPLR § 203(c).

For the reasons that follow hereinafter, plaintiffs' motion is denied.

This is an action for alleged personal injuries as a result of inter alia, common law false arrest, false imprisonment, excessive force, malicious prosecution, and a violation of 42 USC § 1983 premised on the foregoing claims. According to the complaint, filed on May 22, 2014, on February 16, 2013, at or near West Farms Square, Bronx, NY, plaintiffs were battered, arrested, and imprisoned by several police officers, including Claudio. It is alleged that thereafter, plaintiffs were maliciously prosecuted and that the charges against them were subsequently dismissed. Based on the foregoing, plaintiffs interpose eight causes of action. The first and eighth sound in a violation of 42 USC § 1983, wherein plaintiffs allege that Claudio and the other police officers were employed by the City and that the acts that perpetrated against plaintiffs were part of a municipal custom and practice. The second cause of action sounds in a violation of 42 USC § 1983 premised on alleged excessive force. Specifically, it is alleged that Claudio and other officers used force upon plaintiffs and that such force was unreasonable. The third cause of action is for common law battery wherein plaintiffs allege that Claudio and the other officers assaulted and battered them. The fourth and fifth causes of action sound in common law false arrest and false imprisonment wherein it is alleged that plaintiffs were arrested and imprisoned without probable cause. The sixth cause of action sounds in common law intentional infliction of emotional distress wherein it is alleged that defendants' conduct was outrageous and inflicted severe distress upon plaintiffs. The seventh cause of action sounds in common law malicious prosecution wherein it is alleged that defendants maliciously prosecuted plaintiffs without probable cause.

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 & Hosps. Corp, 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]). Delay, 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 very elements of the laches doctrine" [*2](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., Inc. v City of New York, 74 NY2d 166, 170 [1989]["Where a proposed defense plainly lacks merit, 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 [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 complaint will not be granted unless the proposed amendment, as pled, 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, 591 [2d Dept 1996]; Branch v Abraham and Strauss Department Store, 220 AD2d 474, 476 [2d Dept 1995]; Goldner Trucking Corp. v Stoll Packing Corp., 12 AD2d 639, 640 [2d Dept 1960]).

Common Law Claims

Plaintiffs' motion seeking leave to amend their complaint to add Marte as a defendant and assert common law claims against her is denied insofar as she was never named as a defendant in the notice of claim served upon the City and as such any common law/State law claims against her are barred.

Pursuant to General Municipal Law (GML) § 50-e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality. GML § 50-e(a) reads

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.

Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a nullity (Wollins v New York City Bd. of Educ., 8 AD3d 30, 31 [1st Dept 2004]; De La Cruz v City of New York, 221 AD2d 168, 169 [1st Dept 1995]).

GML §50-e(2), requires that a notice of claim

be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney if any,; (2) the nature of the claim; (3) the time when, the place where, and the manner in which the claim arose

It is, thus, well settled that a notice of claim is only adequate and compliant with GML § 50-e(2), [*3]when it contains "information sufficient to enable the city to investigate the claim" (O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981] [Court granted defendant's motion to dismiss plaintiff's cause of action for trespass when the notice of claim served upon the defendant failed to mention 'any trespassory acts.']; Adkins v City of New York, 43 NY2d 346, 350 [1977]; Canelos v City of New York, 37 AD3d 637, 637-638 [1st Dept 2007] ["The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipal agency to investigate the allegations contained in the notice of claim."]; Leone v City of Utica, 66 AD2d 463, 468 [4th Dept 1979], affd 49 NY2d 811 [1980]). GML § 50-e(2), however, does not require that the information within a notice of claim be asserted "with literal nicety or exactness" (Brown v City of New York, 95 NY2d 389, 393 [2000]), and again, the test is "whether [the notice of claim] includes information sufficient to enable the city to investigate" (id.).

Notwithstanding the foregoing, it is equally well settled that theories of liability not listed within a notice of claim can neither be asserted nor prosecuted (Davis v New York City Transit Authority, 117 AD3d 586, 586 [1st Dept 2014]; Williams v County of Westchester, 103 AD3d 796, 797 [2d Dept 2013]; Rodriguez v Board of Educ. of City of New York, 107 AD3d 651, 651 [1st Dept 2013]; Ana R. v New York City Hous. Auth., 95 AD3d 981, 981 [2d Dept 2012]; O'Connor v Huntington U.F.S.D., 87 AD3d 571, 571 [2d Dept 2011]; Semprini v Village of Southampton, 48 AD3d 543, 544 [2d Dept 2008]; Mahase v Manhattan and Bronx Surface Transit Operating Authority, 3 AD3d 410, 411-412 [1st Dept 2004]; Barksdale v New York City Transit Authority, 294 AD2d 210, 211 [1st Dept 2002]; White v New York City Housing Authority, 288 AD2d 150, 150 [1st Dept 2001]). This is because, while the statute does "require that a claimant state a precise cause of action in haec verba" (O'Connor at 571 [internal citations and quotation marks omitted]), a party cannot prosecute claims not asserted within a timely served notice of claim (id. at 571; Davis at 586 ["The trial court correctly set aside the jury's verdict because the evidence presented at trial substantially altered the theory of liability set forth in the notice of claim."]; Williams at 797 [Defendant's motion for summary judgment granted when the notice of claim served by the plaintiffs did not mention the theories advanced by plaintiff, namely, that the subject accident was proximately caused by the lack of a guardrail, by a failure to remove or place protection around the tree that the injured plaintiff allegedly struck, or by a failure to maintain a clear zone on the side of the roadway.]). This, of course, makes sense insofar as a municipal defendant can only investigate the claims asserted in a notice of claim and is, therefore, prejudiced when a plaintiff asserts a cause of action at variance with those claims.

In the First Department, it is equally well settled that the failure to name an individual defendant within a notice of claim bars an action against that individual (Cleghorne v City of New York, 99 AD3d 443, 446 [1st Dept 2012] ["Furthermore, the action cannot proceed against the individual defendants because they were not named in the notice of claim."]; Tannenbaum v City of New York, 30 AD3d 357, 358 [1st Dept 2006] ["General Municipal Law § 50-e makes unauthorized an action against individuals who have not been named in a notice of claim."], abrogated by Kapon v Koch, 23 NY3d 32, *37 [2014] [Court held that contrary to the holding in Tannenbaum, a party seeking disclosure from a non-party need not establish that the disclosure sought could not be obtained from another source.]). To the extent that Goodwin v Pretorius (105 AD3d 207, 209 [4th Dept 2013]), a Fourth Department case holds otherwise, this Court is not bound to that holding (id. at 209 [Court held that GML § 50-e does not require that individual defendants be named in a notice of claim as a pre-condition to the initiation of an action against them.]). Until the Court of Appeals rules otherwise, the First Department is free to fashion its own law on this issue (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984] ["The Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule." (internal citations and quotation marks omitted)]), and actually has (see Tannenbaum at 358). In light of Cleghorne and Tannenbaum, the First Department has determined this issue contrariwise to the Fourth [*4]Department and this Court, is of course, constrained to follow First Department precedent.

Here, a review of the notices of claim submitted by plaintiffs indicate that beyond asserting that they were, inter alia, falsely arrested by police officers, they never identified the officers by name. Accordingly since it is well settled that in the First Department, the failure to name an individual defendant within a notice of claim bars an action against that individual (Cleghorne at 446; Tannenbaum at 358), here, leave to amend the complaint to assert common law causes of action against Marte - the third, fourth, fifth, sixth, and seventh causes of action - must be denied because such claims are barred. Thus, the proposed and aforementioned amendments have no merit (Thomas Crimmins Contracting Co., Inc. at 170).

Federal Law Claims

Plaintiffs' motion seeking leave to amend their complaint to add Marte as a defendant and interpose federal law claims against her is denied insofar as those claims are time barred and plaintiffs fail to establish the applicability of the relation-back doctrine.

With regard to plaintiffs' claims pursuant to 42 USC § 1983,

for which no notice of claim is required (Burton v Matteliano, 81 AD3d 1272, 1275 [4th Dept 2011]), which claims are 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 accrue at or about the same time as the common law claims[FN1] or "when the plaintiff knows or has reason to know of the injury which is the basis of his or her action" (Rimany at 921 [internal quotation marks omitted]; Palmer v State of New York, 57 AD3d 364, 364 [1st Dept 2008]), the statute of limitations for those claims ran on

June 19, 2016, approximately three years after accrual.

As per CPLR § 2211 "[a] motion on notice is made when a notice of the motion or an order to show cause is served." Thus, a motion is deemed made when served, not when it is filed (Ageel v Tony Casale, Inc., 44 AD3d 572, 572 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288 [1st Dept 2007]). Here, were plaintiff first saw to substitute and add Marte as a defendant by way of the instant motion, served on February 27, 2017, it is clear that the statute of limitations on the only viable federal claims against her had run.

CPLR § 1024 allows a party to amend a pleading to replace an unknown party, designated as such at the time an action is commenced, with that party's name once such party is identified (CPLR § 1024). Significantly, the proponent of such an amendment must establish that the defendant who at the time an action was commenced could not be identified, was "named or described in such form as [would] properly identify the defendant and give notice of opportunity to defend" (City of Mount Vernon v Best Dev. Co., 268 NY 327, 331 [1935]; Goldberg v Boatmax://, Inc., 41 AD3d 255, 256 [1st Dept 2007]). Moreover, the proponent of an [*5]amendment under CPLR § 1024 must also establish that diligent efforts to identify an unknown defendant were made prior to commencement of an action to no avail (Henderson-Jones v City of New York, 87 AD3d 498, 506 [1st Dept 2011]; Goldberg v at 256). Notably, when plaintiff knows or reasonably should know a defendant's real name, a John Doe designation in the summons is tantamount to a jurisdictional defect and motion to amend the pleadings will be denied (ABKCO Indus., Inc. v Lennon, 52 AD2d 435, 441-442 [1st Dept 1976]).

It is well settled that designating a defendant as unknown upon the commencement of an action does not toll the statute of limitations against such defendant (Kaczmarek v Benedictine Hosp., 176 AD2d 1183, 1184 [3d Dept 1991]; Green v Fulton County, 123 AD2d 88, 90 [3d Dept 1987]). Accordingly, any amendment of a pleading pursuant to CPLR § 1024 after the expiration of applicable statute of limitations will only be granted if the claims against the defendant sought to be named relate back to the claims against the defendants initially sued (CPLR § 203[c]; Kaczmarek at 1184 ["Regarding the merits, we hold the view that although defendants had the initial burden of establishing by prima facie proof that the wrongful death claim against them was time barred, plaintiffs bore the onus of submitting evidentiary facts establishing that the case falls within an exception, here the relation back doctrine, to the applicable Statute of Limitations."]; Green at 90).

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 in interest with such defendant when the action is commenced." In fact, pursuant to the foregoing, 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, 177 [1995] [internal quotation marks omitted]). However, the relation back doctrine only allows an 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 not be prejudiced in maintaining his defense on the merits and; (3) the new party knew or should have known that, but for a mistake by plaintiff as to the 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, 302 AD2d 155, 164 [1st Dept 2002]). 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, 147-148 [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). Parties are said to be united in interest when "the interest of the parties in the subject-matter is such that they [the parties] stand or fall together and that judgment against one will similarly affect the other" (Vanderburg at 148).

Here, contrary to plaintiffs' assertion, because the claims against Marte are time barred, CPLR § 1024, in and of itself, does not avail them. Accordingly, while the proponent of an amendment to a pleading pursuant to CPLR § 1024 has to establish that it properly made diligent efforts to identify an unknown defendant prior to commencing an action and that once an action was commenced it adequately identified the unknown defendant in the pleadings (City of Mount Vernon at 331; Goldberg at 256; Henderson-Jones at 506), CPLR § 1024 does not toll the applicable statute of limitations against the unknown defendant (Kaczmarek at 1184; Green at [*6]90). Thus, here, where claims sought to be asserted against Marte are time barred, CPLR § 1024 and its requirements do not control. Instead, the relevant inquiry is whether the relation-back doctrine prescribed by CPLR § 203(c) applies so as excuse the expiration of the applicable statue of limitations (Kaczmarek at 1184; Green at 90). The Court holds that it does not and as such, that the proposed amendment to the complaint to add Marte as a Defendant lacks merit and must be denied.

As noted above, the relation back doctrine only allows an 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(s), and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and; (3) the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well (id. at 178).

Here, the relation back doctrine is inapplicable because the record establishes that Marte did not know nor should have known that but for a mistake, this action would have been brought against her.

To be sure, a plaintiff seeking the benefit of the relation back doctrine prescribed by CPLR § 203(c), must establish that the new party against whom plaintiff seeks to bring a belated suit knew or should have known that but for an mistake by plaintiff as to the identity of the proper parties the action would have been brought against him as well (Buran at 178 ; Yaniv v Taub, 256 AD2d 273, 275 [1st Dept 1998]). The proponent of the relation back doctrine must also establish that the proposed defendant had or should have had notice of a potential suit within the applicable limitations period (Yaniv at 276; Virelli v Goodson-Todman Enters, 142 AD2d 479, 483-484 [1st Dept 1989]). Notice that someone else was sued for an event in which an individual not sued was also involved, militates against the application of relation back doctrine on grounds that the individual not sued could assume that there was no intent to sue him (Brock v Bua, 83 AD2d 61, 70-71 [1981], abrogated in part by Buran 87 NY2d 173, 180-181 [Prong of the relation-back doctrine is satisfied if plaintiff merely proves mistake in failing to timely sue all defendants, as opposed to the inexcusable mistake promulgated by Brock.]). Stated differently,

the foregoing test also involves the subsidiary purpose of the Statute of Limitations as one which puts stale claims to repose, thereby freeing a potential defendant from the fear that his involvement in events of the distant past may be the subject of litigation against him. This aspect of the Statute of Limitations reflects a social policy designed to give security and stability to human affairs and thereby to allow an individual or entity to plan for the future free from old claims and obligations. Thus, where such a potential defendant knows that other persons have been subjected to timely suit arising out of an incident in which his participation was manifest to the aggrieved party, he should quite justifiably be entitled to conclude that the failure to also bring suit against him within the period of limitations means that for whatever reason his trespasses have been forgiven by the plaintiff and that the matter has been laid to rest as far as he is concerned. Conversely, where such a potential defendant knows or should know that his involvement in the events in question was not clear to the plaintiff and that failure to bring suit against him as well was therefore the result of excusable mistake upon the plaintiff's part, that defendant cannot justifiably conclude that the plaintiff has, in fact, opted not to sue him. In such situations this policy of repose, designed to protect defendants, is outweighed because the interests of justice require vindication of the plaintiff's rights (id. at 70-71 [internal quotation marks omitted]).

Here, the record fails to establish that Marte knew or should have known, prior to June 19, 2016, the date upon which the statute of limitations on the federal claims expired, that but for a mistake, she too would have been sued. The fact that Marte was involved in the events giving rise to the suit is not in and of itself sufficient to confer notice upon her that she might be sued [*7]even if others involved in the same event were named as defendants. On the contrary, according to Brock, the opposite is true. In fact, here, where the criminal complaint against plaintiff STEVEN RIVERA (Rivera) premises the charges against him and giving rise to this suit on an arrest by Claudio premised on Rivera's assault upon Marte, the failure to sue Marte when Claudio was sued is objective evidence that there was no intent to sue Marte. Having failed to properly sue Marte within the applicable statute of limitations, she was entitled to presume that the failure to sue her for the events in which she too was involved and which gave rise to this action, meant that plaintiffs had chosen not to pursue an action against her (id.).

While it is true that there is federal persuasive authority for the proposition that the forgoing prong of the relation back doctrine - the imputation of knowledge to a defendant that a law suit is imminent because others involved in the same event were sued - can be satisfied when the proposed defendants share the same government attorney (Hood v City of New York, 739 FSupp 196, 199 [SDNY 1990]), the relevant inquiry requires more. Significantly, on this issue, the Second Circuit has stated that

[i]n order to support an argument that knowledge of the pendency of a lawsuit may be imputed to a defendant or set of defendants because they have the same attorney(s), there must be some showing that the attorney(s) knew that the additional defendants would be added to the existing suit Gleason v McBride, 869 F2d 688, 693 [2d Cir 1989]).

Here, while it is true that Marte is represented by the same attorney representing the already sued defendants, plaintiffs fail to proffer any evidence demonstrating that the attorney for the named defendants knew or should have known that the proposed defendants would be named as defendants. Again, this is particularly true here, where Marte's involvement in the events giving rise to this action was known to plaintiffs from the very beginning.

Plaintiffs also fail to establish that Marte is united in interest with the already sued defendants because nothing submitted establishes that a judgment against one of the parties already sued will similarly affect Marte. In fact, here, nothing establishes that Marte is or would be vicariously liable for the conduct of the already named defendants. Generally, parties are united in interest when a "judgment against one will similarly affect the other" (27th Street Block Ass'n. at 164). 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 at 147-148; Teer at 489). 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 at 546; Vanderburg at 148). Parties are said to be united in interest when "the interest of the parties in the subject-matter is such that they [the parties] stand or fall together and that judgment against one will similarly affect the other" (Vanderburg at 148).

With respect plaintiffs' cause of action for violations of 42 US § 1983 for alleged false arrest and false imprisonment, 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 York, 86 AD3d 502, 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 § 1983) against that officer."]; Morgan v City of New York, 32 AD3d 912, 914-915 [2d 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 Marte had no control over the acts of the other named defendants thereby obviating vicarious liability against Marte for the acts of the other defendants. While not dispositive, by way of illustration, the converse is also true. On this issue, plaintiffs - other than via unsupported assertions - offer no evidence establishing that the already named defendants are vicariously liable for the acts of Marte. In fact, while the City could be vicariously liable for the acts of the individual defendants if such acts were within the scope of [*8]their employment[FN2] , plaintiffs proffer nothing demonstrating that Claudio would bear liability for Marte's acts or that a judgment against Claudio would affect Marte in any way.

The Court is unpersuaded by Llerando-Phipps v City of New York (390 FSupp2d 372 [SDNY 2005]), since in that case the court in a very conclusory fashion merely stated that the relation back doctrine applied therein because "the individual officers are united parties in interest with their employer, Defendant City of New York" (id. at 385). The court in Llerando-Phipps offered no explanation for its conclusion and its holding must have been, at best, fact specific. Proof that such a determination is factual rather than one as a matter of law lies within GML § 50-k(3), which expressly allows the City to disassociate itself from an employee's behavior, allowing it to refuse representation and indemnification, thus, obviating any unity of interest if "the injury or damage [alleged] resulted from intentional wrongdoing or recklessness on the part of the employee" (GML § 50-k[3]). Clearly then, unity of interest is always a factual determination and in the context of the instant motion, where plaintiffs must establish such unity, it is a fact which plaintiffs have failed to establish. Davis v Larhette (39 AD3d 693 [2d Dept 2007]) is similarly unpersuasive since it simply reiterates the well settled rule of vicarious liability but does nothing to establish that Marte is vicariously liable for the acts of the City and Claudio.

The absence of complete unity of interest is further borne by examining the federal claim against the City. With respect to plaintiffs' Monnell claim, there is no evidence that Marte or Claudio exercised any control over the City so as to make them vicariously liable for the City's conduct. Moreover, again, for purposes of illustration, the City, as a matter of law, cannot be vicariously liable for an individual's conduct under a Monnell claim.

To be sure, under Monell v Department of Social Services of City of New York (436 US 658 [1977]) a municipality bears liability under 42 USC § 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 making channels (id. [internal quotation marks omitted]).

Accordingly, municipal liability under 42 USC § 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 USC § 1983 solely on a theory of respondeat superior (id.).

Accordingly, plaintiffs fail to establish unity of interest between defendants, proposed and actually sued, and for this additional reason they cannot be accorded the benefit of the relation back doctrine. The motion to amend the pleadings to assert time bared claims against the Marte is, therefore, denied. It is hereby

ORDERED that the defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : August 11, 2017

Bronx, New York

______________________________

BEN BARBATO, J.S.C.

Footnotes

Footnote 1: Common law false arrest and false imprisonment accrue upon a plaintiff's release from confinement (Bellissimo v Mitchell, 122 AD3d 560, 560 [2d Dept 2014]; Charnis v Shohet, 2 AD3d 663, 663 [2d Dept 2003]; Roche v Village of Tarrytown, 309 AD2d 842, 843 [2d Dept 2003]; Avgush v Town of Yorktown, 303 AD2d 340, 341 [2d Dept 2003]). Here, such claims accrued, as on February 20, 2013, when plaintiffs were released from police custody. Insofar as a claim for malicious prosecution accrues upon a favorable termination of a the criminal proceeding against a criminal defendant (Williams v CVS Pharmacy, Inc., 126 AD3d 890, 891 [2d Dept 2015]; Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 83 AD3d 689, 690 [2d Dept 2011]; Bumbury v City of New York, 62 AD3d 621, 621 [1st Dept 2009]; Roman v Comp USA, Inc., 38 AD3d 751, 752 [2d Dept 2007]), here, plaintiffs' claims for common law malicious prosecution accrued, again, as asserted, on June 19, 2013, when the criminal charges against them were dismissed. Accordingly, as to the foregoing claims, including the excessive force claims and the claim for intentional infliction of emotional distress accrued on the date of the injury alleged - February 15, 2013 (Wilson v Erra, 94 AD3d 756, 756 [2d Dept 2012]).

Footnote 2: GML § 50-k(3) states that the City "shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim approved by the corporation counsel and the comptroller, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained."