Crooks v City of New York

[*1] Crooks v City of New York 2018 NY Slip Op 51537(U) Decided on October 31, 2018 Supreme Court, Kings County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2018
Supreme Court, Kings County

Damien Crooks, Plaintiff,

against

The City of New York, THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOHN DOE No.1, POLICE OFFICER JOHN DOE #2, THE KINGS COUNTY DISTRICT ATTORNEY'S OFFICE, DISTRICT ATTORNEY CHARLES J. HYNES, ASSISTANT DISTRICT ATTORNEY LAUREN HERSH, and ASSISTANT DISTRICT ATTORNEY ABBIE GREENBERGER, Defendants.



11655/2013



Attorneys for plaintiffs
Firm Name: Sullivan Papain Block McGrath & Cannavo P.C.
Address: 120 Broadway, 18th Floor, New York, NY 10271

Attorneys for defendants
Firm Name: Zachary W. Carter
Address: Corporation Counsel, New York (Paraskevi V. Migdalis, Senior Counsel)The City of New York, 100 Church Street, New York, NY 10007
Paul Wooten, J.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1

Answering Affidavits — Exhibits (Memo) 2

Replying Affidavits (Reply Memo) 3

This is an action commenced by plaintiff, Damien Crooks, via Summons and Verified Complaint, on July 2, 2013, against the City of New York (the City), the New [*2]York City Police Department (NYPD), Police Officer John Doe #1, Police Officer John Doe #2, the Kings County District Attorney's Office (KDAO), District Attorney Charles J. Hynes (DA-Hynes), Assistant District Attorney Lauren Hersh (ADA-Hersh), and Assistant District Attorney Abbie Greenberger (ADA-Greenberger), to recover monetary damages sustained as a result of his alleged (1) false arrest, detention, and imprisonment, (2) malicious prosecution, and (3) civil rights violation pursuant to 42 USC § 1983, by defendants. Plaintiff served a Notice of Claim on the City on July 24, 2012.

Before the Court is a motion by defendants for an Order, (1) pursuant to CPLR 3212, for summary judgment dismissing plaintiff's Complaint, and (2) pursuant to CPLR 3211 dismissing plaintiff's Complaint for failure to state a Monell claim [FN1] . Plaintiff is in opposition and defendants submit a reply.

BACKGROUND

In 2009, Dina, a 22 year-old Orthodox Jewish woman, alleged, inter alia, that a group of three African American men in her neighborhood raped her and forced her into prostitution. Dina and plaintiff knew each other because she lived around the corner from plaintiff and during the relevant time they had sex on several occasions. Subsequently, Dina signed a statement that despite her allegations of rape by plaintiff, she did not want plaintiff arrested, was unwilling to participate in his prosecution, and would not testify before a grand jury. After conducting an investigation, the Sex Crime Unit closed the case in 2009.

On March 31, 2010, Dina made a complaint to NYPD that she was assaulted and raped by plaintiff. The next day, on April 1, 2010, NYPD interviewed Dina at the Kings County Hospital. During the interview, Dina informed NYPD that she was a prostitute, was not forcibly raped by plaintiff, and had consensual intercourse with plaintiff several times over the past years. She stated further that because plaintiff and she had an intercourse without a condom, she wanted to be checked by a doctor to make sure she did not contract any disease and to obtain birth control from the hospital. On the same day, Dina signed a recantation statement. The police officers who interview Dina at the hospital prepared official reports memorializing her statements, and on April 2, 2010, NYPD recommended to close the case. Later, Dina claimed that the police threatened her that she would be arrested on prostitution charges if she went forward with the rape allegations from March 31, 2010.

At that time, DA-Hynes was the District Attorney of KDAO, ADA-Hersh was the chief of the Sex Trafficking Unit of KDAO, and ADA-Greenberger worked at the Sex Trafficking Unit. ADA-Hersh and ADA-Greenberger were assigned to investigate the case and prosecute plaintiff. There is evidence that ADA-Hersh became aware of Dina's recantation and psychiatric history in 2011.

On April 8, 2011, plaintiff was arrested for allegedly stealing from a T-Mobile store and was charged with larceny. The trial in the larceny case was held in abeyance until the resolution of the rape and sex trafficking case.

On June 17 through June 21, 2011, ADA-Hersh and others met with Dina to prepare her for testifying before a Grand Jury and she testified before the Grand Jury on June 22, 2011. DA-Hersh made an effort to obtain plaintiff's rape kit before presenting the case to the Grand Jury, as he consented to provide his DNA and be tested, but it appears that his tests were not conducted. DA-Hersh also obtained some records from Dina's inpatient psychiatric treatment facilities.

On June 27, 2011, the Grand Jury indicted plaintiff. On June 29, 2011, ADA-Hersh appeared with others at plaintiff's arraignment hearing where the prosecution proceeded with the charges against plaintiff for rape and sex trafficking. At the arraignment, the Court set a bail of $1,000,000 for plaintiff, and after surrendering himself to KDAO, he was arrested also on June 29, 2011. Plaintiff was held in jail at Rikers Island until April 26, 2012.

On or about April 13, 2012, Assistant District Attorney, Rebecca Gingold (ADA-Gingold), became assigned to plaintiff's case to continue his prosecution. She learned that Dina spent almost four years in inpatient psychiatric facilities, including during the same time as when the events in her allegations against plaintiff have occurred. In addition, there was no evidence that plaintiff received any profits from the alleged prostitution of Dina. Furthermore, there were about six versions of the March 31, 2010 rape incident based on which plaintiff was charged, and some of the evidence contradicted Dina's earlier testimony to the Grand Jury. Most importantly, she discovered that ADA-Hersh failed to disclose to plaintiff Dina's recantation and certain other evidence, which she turned over to plaintiff's defense counsel on March 13, 2012.

When DA-Hynes became aware of Dina's recantation, he directed his staff to release plaintiff and he was released from jail at Rikers Island on April 26, 2012, on his own recognizance. Later, DA-Hynes admitted in his testimony that the failure to disclose Dina's recantation constituted a Brady violation, as well as a violation of the KDAO's open file policy. The open file policy was established in 1990s and required assistant district attorneys to turn over to defense counsel the prosecution's case files on misdemeanor and felony cases.

On June 26, 2012, two months after his release from the jail at Rikers Island, Hon. John P. Walsh of Kings County Supreme Court dismissed all charges against plaintiff. Subsequently, the trial in the larceny case resumed and plaintiff was found guilty in August 2012. At sentencing, plaintiff plead guilty to two counts of petty larceny and was sentenced to one year in jail. However, plaintiff credited the time he served in the rape and sex trafficking case against the one-year jail sentence for his petty larceny conviction. Thus, plaintiff did not serve any additional time in jail besides the 9 months and 30 days from April 8, 2011 to June 29, 2012.

LEGAL STANDARDS [*3]A.Summary Judgment Motion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Winegrad v NY Univ. Medical Cntr., 64 NY2d 851, 853 [1985]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of NY, 49 NY2d 557, 562 [1980]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; CPLR 3212[b]).

B.Motion to Dismiss

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994], citing CPLR 3026). The court "'accept[s] the facts as alleged in the complaint as true, accord[s the] plaintiff[] the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory'" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017], quoting Leon, 84 NY2d at 87-88). The standard is not whether the complaint states a cause of action, but whether the plaintiff has a cause of action (see Morales v Copy Right, Inc., 28 AD3d 440 [2d Dept 2006]).

"CPLR 3211(a)(7) dismissals merely address the adequacy of the [pleading], and do not reach the substantive merits of a [party's] cause of action" (Lieberman v Green, 139 AD3d 815, 816 [2d Dept 2016], quoting Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 255 [2d Dept 2012]). "[H]owever, 'allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence [or which are inherently incredible] are not entitled to any such consideration'" (Simkin v Blank, 19 NY3d 46, 52 [2012], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]; see also Connaughton, 29 NY3d at 141-142; Graven v Children's Home R.T.F., Inc., 152 AD3d 1152, 1153 [3d Dept 2017]).

On motions to dismiss actions alleging violations of 42 USC § 1983 for failure to state a cause of action, New York Courts apply the standards under CPLR 3211(a)(7), rather than the federal pleading standards (see e.g. Vargas v City of New York, 105 AD3d 834, 834—837 [2d Dept 2013]; Johnson v Kings Cty. Dist. Attorney's Office, 308 AD2d 278, 283 [2d Dept 2003]).

DISCUSSION A.Plaintiff's False Arrest Claim

The Court finds that plaintiff's first cause of action for false arrest and imprisonment must be dismissed. The Complaint alleges the elements of prima facie case of the tort of false arrest and imprisonment under New York law (see Aff in Supp, exhibit C, Complaint, ¶ 44). However, to the extent that plaintiff asserts a claim for false arrest under 42 USC § 1983, "[t]he elements of a claim of false arrest under [42 USC] § 1983 are substantially the same as the elements of a false arrest claim under New York law" (Singer v Fulton Cty. Sheriff, 63 F 3d 110, 118 [2d Cir. 1995]). The prima facie case for false arrest or imprisonment under New York law requires a showing that: "1) the defendant intended to confine plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged" (Broughton v State, 37 NY2d 451, 456 [1975]; Rivera v Cty. of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011]). "For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause" (Torres v Jones, 26 NY3d 742, 759 [2016]). "Typically, a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest" (see Singer, 63 F3d at 117; citing Broughton, 373 NYS.2d at 94). Thus, "[i]f there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment" (see id.). "When there is an alleged unlawful arrest made pursuant to a valid warrant, the appropriate form of action is malicious prosecution, not false imprisonment" (see Washington-Herrera v Town of Greenburgh, 101 AD3d 986, 988 [2d Dept 2012]). Moreover, "[an] arrest made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person is privileged" (see Johnson v Kings Cty. Dist. Attorney's Office, 308 AD2d 278, 308 [2d Dept 2003]). Here, plaintiff was arrested and confined post-arraignment on June 29, 2011, pursuant to a warrant that was issued based on plaintiff's EX indictment and was not challenged as to be facially invalid; thus, an appropriate form of action here is malicious prosecution (see Aff in Opp, exhibit O, Baer's Tr at11-12). Therefore, the Court finds that the branch of defendants' motion for summary judgment dismissing plaintiff's first cause of action for false arrest and imprisonment must be granted.

B.Plaintiff's Malicious Prosecution Claim

The Court finds that plaintiff's second cause of action for malicious prosecution must be dismissed. The Complaints states a cause of action for malicious prosecution under New York law (see Aff in Supp, exhibit C, ¶¶ 51-59). Defendants move to dismiss plaintiff's claim for malicious prosecution under 42 USC § 1983 (see Aff in Supp ¶¶ 18-20; Reply, ¶ 11). To the extent that plaintiff also asserts a claim for malicious prosecution under 42 USC § 1983, however, "[i]n order to prevail on a [42 USC] § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law" (Washington-Herrera v, 101 AD3d at 988; see also Plaintiff's Mem in Opp).

To sustain a cause of action alleging malicious prosecution under New York law, a plaintiff must establish: (1) "the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice" (Broughton, 37 NY2d at 456; Chetrick v Cohen, 52 AD3d 449, 450 [2d Dept 2008]). With regard to malice, "a plaintiff need not demonstrate the defendant's intent to do him or her personal harm, but need only show a reckless or grossly negligent disregard for his or her rights[, which may be shown] by initiation of the prosecution notwithstanding the total absence of probable cause" (Ramos v City of New York, 285 AD2d 284, 300—01 [1st Dept 2001]; citing Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]; Martin v City of Albany, 42 NY2d 13, 17 [1977]). However, [t]he existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution, including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action" (Paulos v City of New York, 122 AD3d 815, 817 [2014]). Furthermore, "[i]n cases in which the grand jury has returned an indictment, there is a presumption of probable cause, and the plaintiff can therefore only succeed on a malicious prosecution claim if he can prove that the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct" (Grucci v Grucci, 20 NY3d 893, 898 [2012]; Torres, 26 NY3d at 761; Gill v City of New York, 146 AD3d 939, 942 [2d Dept 2017]).

Here, the review of the record shows that plaintiff's claim of malicious prosecution is based on prosecutorial misconduct, stemming from the alleged suppression of Dina's recantation and other evidence to plaintiff from the time of initiation of his prosecution until 2012. However, ADA-Hynes, ADA-Hersh, and ADA-Greenberger are entitled to absolute immunity "from civil liability for activities intimately associated with the judicial phase of the criminal process, meaning initiating a prosecution and in presenting the State's case" (see Johnson, 308 AD2d at 278; citing Imbler v Pachtman, 424 US 409, 424 [1976]).

The District Attorneys are immune from liability from any misconduct in evaluating evidence, deciding whether to indict plaintiff, and for any misconduct during grand jury, as well as subsequent prosecution of plaintiff's case because these activities are intimately associated with the judicial phase of the criminal process" (see id.; Shmueli v City of New York, 424 F3d 231, 237 [2d Cir 2005], citing Imbler, 424 US at 431 n 4 ["A prosecutor is also entitled to absolute immunity despite allegations of his knowing use of perjured testimony and the deliberate withholding of exculpatory information. . . . Although such conduct would be reprehensible, it does not make the prosecutor amenable to a civil suit for damages."]; Jones v City of New York, 988 F Supp 2d 305, 312 [ED NY 2013] [finding that "the decisions made by ADAs Fay and Solange—whether to test for potentially inculpatory (or exculpatory) DNA information, how and when to disclose or use that information, and whether to continue prosecuting plaintiff—were exercises of legal judgment undertaken in preparation for trial"]; People v Swamp, 84 NY2d 725, 731 [1995] ["Evidence later proven unreliable can legally support an indictment."]). In contrast, "actions taken as an investigator enjoy only qualified immunity" (see e.g., Zahrey v Coffey, 221 F3d 342, 346 [2d Cir 2000]; quoting Barbera v Smith, 836 F2d 96, 99 [2d Cir1987] ["[W]hen a prosecutor performs an investigative or administrative function rather than a prosecutorial one, absolute immunity is not available."]). In any event, "District Attorney's misconduct in prosecuting an individual could not give rise to municipal [*4]liability" (Johnson, 308 AD2d at 295; Whitmore v City of New York, 80 AD2d 638 [2d Dept 1981]).

In addition, DA-Hynes, ADA-Hersh and ADA-Greenberger in their official capacity are still entitled to sovereign immunity for violations of 42 USC § 1983 pursuant to 11th Amendment, as agents of the State (see Jones, 988 F Supp 2d at 312, citing Ying Jing Gan v City of New York, 996 F2d 522, 529 [2d Cir 1993]). In addition, to the extent that plaintiff sues Kings County District Attorney's Office, "New York district attorneys' offices are considered non-suable entities because the office of district attorney is not a legal entity distinct from the district attorney himself" (see Galdano v County of Putnam, 16 CV-3572, 2018 WL 4757968, * 17 [SD NY Sept 28, 2018]; citing Bryan v New York, No. 14-CV-8305, 2015 WL 4272054, at *3 [SD NY July 13, 2015] [providing also that "[e]ven if the DA's Office could be sued, such claims would be barred by the Eleventh Amendment [as] District attorneys' offices enjoy the State's sovereign immunity because New York district attorneys "acting in a quasi-judicial capacity, represent[ ] the State not the county"], citing Baez v Hennessy, 853 F2d 73, 77 [2d Cir 1988]; Sash v City of New York, No. 05-CV-1544, 2006 WL 2474874, at *4 [SD NY Aug 11, 2006]).

With regards to defendants NYPD, and Police Officer John Doe #1 and Police Officer John Doe #2, the Court finds plaintiff failed to assert any facts to raise a triable issue of fact that would defeat defendant's summary judgment motion. For example, in New York, there is no cause of action for negligent investigation, hence, the probable cause presumption for malicious prosecution arising from plaintiff's Grand Jury indictment may be overcome based upon a showing that "the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (see Johnson, 308 AD2d at 288). Here, plaintiff does not allege, and there record does not show that the police disregarded any procedures in investigating plaintiff's case, nor that it presented fraudulent evidence, committed perjury or suppressed evidence to the Grand Jury or District. Furthermore, NYPD is non-suable as "under New York law, departments which are merely administrative arms of a municipality, do not have a legal identity separate and apart from the municipality and cannot sue or be sued" (see Galdano, 2018 WL 4757968, at *5, citing Hall v City of White Plains, 185 F Supp 2d 293, 303 [SD NY 2002]).

Therefore, the Court finds that the branch of defendants' motion for summary judgment dismissing plaintiff's second cause of action for malicious prosecution under New York law is granted. Furthermore, even if, assuming arguendo, the Court were to find that plaintiff is entitled to a summary judgment dismissing plaintiff's second cause of action for malicious prosecution under 42 USC § 1983, plaintiff still cannot establish deprivation of his liberty that is attributable solely to the prosecution of his rape and sex trafficking charges. "Once a plaintiff presents a claim of malicious prosecution under [42 USC] § 1983, the court must engage in two inquiries: whether the defendant's conduct was tortious; and whether the plaintiff's injuries were caused by the deprivation of liberty guaranteed by the Fourth Amendment" (Singer, 63 F3d at 116).

In support of their motion, defendants argue that plaintiff cannot establish that he was deprived of liberty for purposes of his federal malicious prosecution claim because he credited the incarceration time he served in the rape and sex trafficking case to his [*5]petty larceny conviction (see Aff in Supp,¶¶ 18-20; Reply, ¶¶ 4, 7). In other words, plaintiff cannot be compensated for eight months of his incarceration in the rape and sex trafficking case when he credited that time against his sentence to serve time in prison for his petty larceny conviction (see id.). In opposition, plaintiff argues that if he were to serve his one-year sentence of imprisonment for the petty larceny crime, he would have only served eight months in prison because his sentence would be reduced by one-third for good behavior pursuant to New York Penal Law section 70.30(4)(b) and New York Correctional Law section 804(1) (see Plaintiff's Mem of Law in Opp, at 10-13). Therefore, plaintiff avers that he is entitled to damages for at least additional two months of time served in prison (see id.). In response, defendants proffer that this proposition of plaintiff is speculative and unjust (see Reply, ¶ 9). Defendants maintain further that plaintiff's sentence in the petty larceny case was based on a plea, which precludes any argument as to the amount of time he would have to spend in prison, and in any event, fails to take into account plaintiff's past arrests where he was not released early for good behavior (see id.). Thus, in relying on a Seventh Circuit case of Ramos v City of Chicago, defendants maintain that plaintiff forfeited his claim for unlawful depravation of liberty as the credited time of his incarceration in this case became a part of plaintiff's incarceration conviction in the petty larceny case (see id.; Ramos v City of Chicago, 716 F 3d 1013, 1019 [7th Cir 2013]). In addition, plaintiff argues that his damages are not limited to his depravation of liberty for his incarceration, but also include other damages, for example, damage to his reputation and well-being (see Plaintiff's Mem of Law in Opp, at 10-13).

Here, the Court finds that for purposes of his claim of malicious prosecution under 42 USC § 1983, plaintiff failed to establish that his post-arraignment arrest and incarceration constituted unreasonable depravation of the plaintiff's person in violation of his Fourth Amendment that is attributable solely to the criminal action for rape and sex trafficking. In particular, the Court finds unavailing plaintiff's argument that he would be released from prison two months earlier for good behavior, because the time allowance for good behavior under New York Correctional Law section 804(1) are discretionary (see NY Correct Law § 804).

In addition, since plaintiff credited his time of incarceration in the rape and sex trafficking case to his petty larceny case, his post-arraignment detention is no longer related or attributable to the rape and sex trafficking case. As a result, plaintiff is not entitled to receive a jail-time credit in the later case and be compensated for same in the rape and sex trafficking case, as plaintiff simply cannot have his cake and eat it too. Therefore, the Court finds that defendants' summary judgment motion to dismiss plaintiff's second cause of action for malicious prosecution under 42 USC § 1983 is granted.

C.Plaintiff's Negligent Hiring Claim

The Court finds that plaintiff's third cause of action alleging negligence of the defendants City, NYPD, KDAO and DA-Hynes in the hiring, retention, supervision, and [*6]training of their employees involved in the investigation and prosecution of plaintiff, in particular ADA-Hersh, ADA-Greenberger, Police Officer John Doe #1, and Police Officer John Doe #2, must be dismissed. It is a well-settled law, that "where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention" (Karoon v New York City Transit Auth., 241 AD2d 323, 324 [1st Dept 1997]; see also Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Eckardt v City of White Plains, 87 AD3d 1049, 1051 [2d Dept 2011]). The exception to this general rule for plaintiffs seeking punitive damages does not apply here as the State and its political subdivisions "are not subject to punitive damages," and plaintiff does not seek punitive damages in the herein action (see Karoon, 241 AD2d at 325).

Here, plaintiff named as defendants district attorneys and police officers in their official capacities, not their individual capacities. Furthermore, the City defendant admits in the defendants' motion papers that all of the employees of KDAO and NYPD involved in plaintiff's case were acting within the scope of their employment with the City, and NYPD and the City will bear liability for these employees' actions (see Aff in Supp, ¶¶ 26-27). Nonetheless, in his opposition papers, plaintiff explicitly abandons his claim as he states that he does not oppose dismissal of the negligent hiring, training, and retention claim (see Plaintiff's Mem of Law in Opp, at 3, n 1; Reply, ¶ 2). Therefore, the Court finds that the branch of defendants' motion for summary judgment dismissing plaintiff's third cause of action for negligent hiring, retention, supervision, and training of the employees of the City, KDAO and NYPD is granted.

D.Plaintiff's Monell Claim under 42 USC § 1983

The Court finds plaintiff's fourth cause of action, pursuant to CPLR 3211, must be dismissed. Plaintiff alleges that he was deprived of his rights under the Constitution of the United States and New York State, and 42 USC § 1983 because the defendants City, NYPD, KDAO, and DA-Hynes were deliberately indifferent to the depravation of plaintiff's liberty as a result of the negligent hiring, retention, supervision, and training of their employees involved in the investigation and prosecution of plaintiff (see Complaint, ¶¶ 64-65). As a preliminary mater, the Court points out that "a plaintiff may not hold [the City] liable pursuant to 42 USC § 1983, under a theory of respondeat superior or vacarious liability (see Eckardt, 87 AD3d at 1052; Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978]). Furthermore, to hold the City liable under 42 USC § 1983 for unconstitutional actions of its agents, plaintiff must allege that the allegedly unconstitutional actions of its agents were undertaken to"implement[] or execute[] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" (see Monell, 436 US at 690). In addition, "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' [*7]even though such a custom has not received formal approval through the body's official decisionmaking channels" (see id.).

Moreover, "[t]o hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy" (Vargas v City of New York, 105 AD3d 834, 837 [2d Dept 2013] [emphasis added]). Importantly, however, plaintiff may successfully assert a Monell claim if he is able to "prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law" (City of St. Louis v Praprotnik, 485 US 112, 127 [1988]).

Next, "a municipality may be held liable under 42 USC § 1983 for its failure to train or adequately supervise its employees "in a relevant respect must amount to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact" (Connick v Thompson, 563 US 51, 61 [2011], citing City of Canton, Ohio v Harris, 489 U.S. 378, 388 [1989]; see also Pendleton v. City of New York, 44 AD3d 733, 736—37 (2d Dept 2007]). In addition, "if the failure amounts to 'deliberate indifference' to the rights of those with whom the city employees interact[, such] failure to train or supervise city employees "may constitute an official policy or custom (see Wray v City of New York, 490 F3d 189, 195 [2d Cir.2007]; see also City of Canton, 489 US at 388-89 [emphasis added].

However, District Attorneys are entitled to absolute prosecutorial immunity in actions predicated on 42 USC § 1983 for "making decisions regarding training [on issues] requirin[ing] knowledge of the law" (see Van de Kamp v Goldstein, 555 US 335, 335 [2009]). In this context, where legal knowledge is required and exercise of discretion to determine "what information should be included in training [or] supervision," absolute immunity applies (see id.; see also D'Alessandro v City of New York, 713 F App'x 1, 8 [2d Cir 2017]. In particular, "a District Attorney's office may not be held liable under § 1983 for failure to train its prosecutors based on a single Brady violation" (Connick, 563 US at 51). Moreover, "[a] pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train" (id. at 62). Finally, "[w]ithout notice that a course of training is deficient, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights" (id. at 52).

In support of their motion to dismiss the branch of plaintiff's Complaint, pursuant to CPLR 3211(a)(7), for failure to state a Monell claim, defendant argue that plaintiff failed to provide specific facts that show that defendants' allegedly improper actions resulted from implementing or following any official policy or custom causing plaintiff's injury, or that there existed a pattern of constitutional rights violation on the part of defendants (see Defendants' Aff in Supp, ¶¶ 21-25). In opposition, plaintiff maintains, inter alia, that he sufficiently stated his claim on the grounds of DA-Hynes' failure, as a policymaker, to properly train his staff on the issue of the alleged Brady violation, which [*8]stemmed from the fact that, in 2012, in his email to the Chief of the Rackets Division DA-Hynes stated in his proposed draft of a press release that ADA-Hersh did not violate Brady, but in 2015, during his deposition, DA-Hynes admitted that ADA-Hersh indeed violated Brady (see Plaintiff's Mem of Law in Opp, at 14-16; Aff in Opp, exhibits C and R). In Reply, defendants aver that despite DA-Hynes' admission that the recantation material was a Brady material, plaintiff cannot make a Monell claim for failure to train or supervise on Brady as there was no Brady violation here because the Brady material was disclosed to the criminal defendants before plaintiff's trial (see Reply, ¶ 13).

Here, the Court finds that, even assuming arguendo that the prosecution committed a Brady violation, plaintiff still failed to allege a Monell claim against the City, and DA-Hynes, in his official capacity, as a single Brady violation is insufficient to establish liability on the part of the City under 42 USC § 1983 for failure to train and to prove deliberate indifference to plaintiff's constitutional rights. In addition, the Court finds that plaintiff failed to allege any facts demonstrating that plaintiff's arrest, detention, or criminal prosecution, which allegedly violated his rights under 42 USC § 1983, resulted from the implementation of a policy, regulation, or custom of the City, NYPD, or the KADO. Furthermore, the Court finds that neither DA-Hynes, nor NYPD, nor the City, is vicariously liable under 42 USC § 1983 for the conduct of defendants ADA-Hersh and ADA-Greenberger, or the defendant police officers. In addition, DA-Hynes is entitled to absolute immunity under 42 USC § 1983 for making decisions regarding training of the KDAO's employees. Therefore, the Court finds that plaintiff's fourth cause of action for depravation of his liberty in violation of 42 USC § 1983 must be dismissed.

CONCLUSION

For these reasons and upon the foregoing papers, it is,

ORDERED that defendants' motion seeking to dismiss the Complaint is granted and plaintiff's Complaint is hereby dismissed; and, it is further,

ORDERED that counsel for defendants is directed to serve a copy of this Order with Notice of Entry upon the defendants.

This constitutes the Decision and Order of the Court.

Dated:
PAUL WOOTENJ.S.C. Footnotes

Footnote 1:Pursuant to the Rules of this Court, Part 97, "[i]f there is a discrepancy between the relief sought in a Notice of Motion and the relief sought in the supporting motion papers, the Notice of Motion is controlling" (see Part 97 Rules, https://www.nycourts.gov/courts/2jd/kings/civil/WootenRules.shtml). In the Notice of Motion, defendant City of New York states that it seeks to dismiss plaintiff's Complaint, pursuant to CPLR 3211, for failure to state a Monell claim (see Notice of Motion). In their Reply, however, defendants seek a summary judgment, pursuant to CPLR 3212, dismissing the entire action, including plaintiff's constitutional claims against the defendants premised on his Monell claim (see Reply, ¶¶ 12-24). Thus, the Court finds that the relief sought in the Notice of Motion, pursuant to CPLR 3211, with regard to plaintiff's Monell claim against the defendants named in the Complaint and the remaining motion papers is controlling.