Jackson v City of Saratoga Springs
Annotate this CaseDecided on September 18, 2023
Supreme Court, Saratoga County
Patty Jackson, individually, and as ADMINISTRATRIX OF THE ESTATE OF DARRYL MOUNT, Plaintiff,
against
City of Saratoga Springs, a Municipality Organized and Operating under the law of the State of New York; CHRIS MATHIESEN, Commissioner of the Department of Public Safety; CHIEF GREGORY J. VEITCH; SGT. AARON P. BENWARE; OFFICER FREDERICK J. WARFIELD; OFFICER JOHN BATEHOLTS; OFFICER TYLER McINTOSH; OFFICER ADAM FRENCH; and INVESTIGATOR JAMES BELL, Defendants.
Index No. 20143461
For Plaintiffs
Brian H. Breedlove, Esq.
Breedlove Law PLLC
Queensbury, New York
Stephen R. Coffey, Esq.
O'Connell and Aronowitz
Albany, New York
For Defendants
John D. Aspland, Esq.
Corey A. Ruggiero, Esq.
FitzGerald Morris Baker Firth, P.C.
Glens Falls, New York Thomas D. Buchanan, J.
This matter comes before the Court on the motion of Defendants seeking summary [*2]judgment dismissing the Complaint in its entirety. Plaintiff has opposed the motion. This case arises from events that took place in the early morning hours of August 31, 2013. According to police officers Tyler McIntosh and Frederick Warfield, they pursued Plaintiff's decedent Darryl Mount after they observed him commit what they considered to be an assault on his then girlfriend on Caroline Street in downtown Saratoga Springs. The pursuit proceeded into an alleyway and then onto construction scaffolding standing in the alleyway. The officers have testified in deposition that the chase ended when they and Sgt. Aaron Benware (who had entered the alleyway from the other direction) discovered Mount lying face down on the ground behind Gaffney's Restaurant & Bar. Plaintiff, on the other hand, asserts that the pursuing officers encountered Darryl Mount in the alleyway and beat him with sufficient force to inflict injuries that required hospitalization and ultimately resulted in his death.
Certain Claims Withdrawn. At the outset of her response to Defendants' motion, Plaintiff's counsel withdraws her claims for false arrest and unlawful pursuit, her claims under the New York State Constitution, her claim under 42 USC §1981 and her claim for conspiracy under 42 USC §1985. Analysis of those claims is therefore unnecessary in this decision.
Racial Profiling. Plaintiff specifies racial profiling as a component of the First, Second and Fourth Causes of Action in the Complaint, and it can be fairly implied in the Third Cause of Action. As is pointed out in the defense motion, racial profiling is analyzed as a specific type of equal protection claim, and as such, is divided into two general types of claims: intentional discrimination and selective enforcement (see Dixon v. City of Syracuse, 493 F Supp 3d 30, 41-42 [ND NY 2020]). Intentional discrimination can take the form of (1) a law or policy expressly classifying persons by race, (2) a facially neutral law or policy that is applied with intent to discriminate, or (3) a facially neutral law or policy that has an adverse effect which is motivated by discriminatory animus. Selective enforcement consists of the selective treatment of one person as compared to others similarly situated, which treatment is motivated by an intent to discriminate based on race (Id.).
Defendants argue that there is neither evidence in the record of any City of Saratoga Springs law or policy of intentional discrimination nor evidence that other individuals situated similarly to Mr. Mount were treated differently. In response, Plaintiff points to a resolution adopted by the City Council of Saratoga Springs on May 2, 2023, in which the Council "acknowledges that Saratoga Springs has supported and allowed racism and hate in areas of housing, employment, law enforcement and other areas of formal and informal life during its history" as constituting an admission of racial animus in this case.
The Court is constrained to note that although discovery in this case has been ongoing for over six years, this resolution is the single piece of evidence adduced by Plaintiff to substantiate her claim of racial profiling. Acknowledging that the City of Saratoga Springs has supported and allowed racism is not the same as admitting a claim of racial profiling against Darryl Mount. While perhaps the argument could be made that the City Council's acknowledgment encompasses one or more of the types of intentional discrimination cited in the Dixon opinion, there is no acknowledgment of a connection between discriminatory attitudes present during the City's history and the allegations that Darryl Mount was beaten by police officers on August 31, 2013.
The Court is mindful of the overtones of racial discrimination that permeate this case and the invidious nature of racial discrimination. The history of racial discrimination in this country and its persistence in our society today must be acknowledged, but the analysis here must be [*3]confined to the legal principals upon which Plaintiff bases her claims and the evidence that can be proffered to establish those claims. On the record here, Plaintiff has been unable to raise a question of fact as to the use of racial profiling by members of the Saratoga Springs Police Department against Darryl Mount on the night in question. That being said, Plaintiff's claims go beyond racial profiling and bear careful examination.
The Use of Excessive Force. The core factual assertion made in the Second Amended Complaint is that police officers used excessive force against Darryl Mount. On this motion, Defendants assert that none of the officers struck or otherwise applied any force to Mr. Mount. Instead, Defendants argue that Mount sustained his injuries when he fell from scaffolding onto which he had climbed when trying to evade the police pursuit. Defendants thus argue that no constitutional violation took place, which would rob Plaintiff's claims of their basis. In addressing the considerable argument put forward by the parties on this point, two legal principles must be kept in mind.
First, this is a summary judgment motion. Care must be taken to separate the proof standards applicable to this motion from those applicable at trial. The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).
Second, the great majority of the evidence submitted by both sides is circumstantial. While sometimes diminished in popular parlance, circumstantial evidence is specifically sanctioned by case law as acceptable proof. A concise definition of circumstantial evidence is provided by the Pattern Jury Instructions used by virtually all trial judges in New York civil actions: "Circumstantial evidence is evidence of a fact that does not directly prove the fact in dispute, but which permits a reasonable inference or conclusion that the fact exists" (PJI 1:70). However, proof by circumstantial evidence must be sufficient to allow the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, rather than speculation (Gayle v. New York, 92 NY2d 936 [1998]).
Bearing these points in mind, we turn to the events of August 31, 2013. In support of their motion, Defendants point to testimony from the police officers' respective depositions, in which they all state that they lost sight of Mount after he entered the alleyway and then entered construction scaffolding that had been erected there. The officers state that they only regained sight of him after he was already lying on the ground. The officers thus did not observe Mount sustain his injuries, and Officer McIntosh, the officer who pursued Mount onto the scaffolding, testified that he did not inflict them. Defendants also point to a sworn statement and deposition testimony given by Thomas Kvasnack, purportedly the only eyewitness to the subject events. Kvasnack states that he saw Mount fall as he attempted to jump from the scaffolding to the fire escape of an adjacent building. He further states that he saw no officers in Mount's vicinity when he fell. Defendants also note the testimony of two Gaffney's employees who, having gone into the alley after hearing a loud sound, saw one of the officers up on the scaffolding shining a flashlight around the alley, the light from which eventually revealed Mr. Mount lying on the [*4]ground. Finally, Defendants offer the deposition testimony of Dr. Michael Sikirica, who performed an autopsy on Mount's body and opines that his death was accidental, likely due to a fall from the scaffolding.
While this evidence paints a facially logical chain of events, several factors militate against the defense carrying their initial burden on this motion. Officer McIntosh testified that he did not strike or push Darryl Mount while on the scaffolding. While uncontradicted, this testimony amounts to self-serving statements of an interested party that refer to matters exclusively within his knowledge, thus creating a question of credibility that cannot be resolved on a summary judgment motion (see e.g. Quiroz v. 176 N. Main, LLC, 125 AD3d 628 [2d Dept 2015]). It could be argued that the McIntosh testimony is corroborated by the eyewitness testimony of Kvasnack that he saw no officers in Mount's vicinity, but Kvasnack's testimony presents its own challenges. His description of the alleyway as well-lit is at odds with other witnesses, which is important to an evaluation of just what could be seen. Kvasnack's testimony is also internally contradictory as to whether he actually saw Mount jump from the scaffolding and whether he was alone in the alley, including whether other Gaffney's employees were with him at the time of Mount's fall.
While Kvasnack's contradictions do not necessarily impeach his testimony, it does appear the passage of time may have affected his memory. He was deposed some eight years after the events at issue. In order to find that the defense has carried their burden, the Court would have to accept both the McIntosh and Kvasnack testimony as prima facie accurate. Instead, both witnesses present credibility determinations that are not to be made on summary judgment motions, but are reserved for the trier of fact (see e.g. Dillenbeck v. Shovelton, 114 AD3d 1125 [3d Dept 2014]).
Plaintiff points out another question that must be resolved by the finder of fact. Kvasnack was adamant in his deposition that he saw Mount land in a place some distance from where the Gaffney's employees and the police discovered him. He further testified that Mount was still sufficiently conscious immediately after his fall to be moving his arms and moaning, whereas the other witnesses testified that he was unresponsive and lying face down when he was found. Plaintiff also points out that, following the timeline of testimony, Sgt. Benware and Officer McIntosh were alone in the alley with Mount prior to the arrival of the Gaffney's employees. The Gaffney's employees testified to hearing a sound that prompted them to enter the alley, but they could not testify that the sound they heard was Mount's fall, so that the time frame of their entrance into the alleyway is open to interpretation.
Plaintiff also offers affidavits from two medical experts who opine that Darryl Mount was not injured by falling from the scaffolding or fire escape as theorized by the defense. Both physicians point to the nature of the injuries he suffered and also the absence of certain other types of injuries. In particular, both physicians opine that if Mount had fallen from the height described by Kvasnack and Dr. Sikirica and sustained the facial injuries he suffered, he would certainly also have suffered a broken neck, but he did not. They go on to opine that Mount did not sustain his injuries in a fall from the scaffolding (or fire escape, as described by Kvasnack). Instead, they opine specifically that he suffered blunt force trauma to his face as the result of a beating. Because there is nothing in the record to show that Mount received his injuries at the hands of someone other than police officers, the medical experts also raise a question of credibility as to the officers' testimony.
Defense counsel argues vigorously that Plaintiff is relying on circumstantial, speculative [*5]evidence that ignores the testimony of the only eyewitness, that being Kvasnack. Indeed, the defense argues at one point that this Court cannot consider any circumstantial evidence proffered by Plaintiff. Certainly, defense counsel does not appear to argue that circumstantial evidence cannot be considered in general, as the Appellate Division has held in several contexts that circumstantial evidence can defeat a motion for summary judgment where the movant has carried their initial burden of proof (see e.g. James B. Nutter & Co. v. County of Saratoga, 215 AD3d 1183 [3d Dept 2023] [tax foreclosure]; Vetere v. Pembrooke Land Dev., LLC, 156 AD3d 1195 [3d Dept 2017] [trespass]; Guimond v. Village of Keeseville, 113 AD3d 895 [3d Dept 2014] [municipal liability]). Moreover, the specific case advanced by Defendants does not fully support their argument. Defendants cite Moreira v. City of New York (2022 WL 1230412 [ED NY Jan. 14, 2022, No. 19-CV-5402 (CBA/RER)]), a case involving the alleged use of excessive force by police officers. A reading of the Moreira decision shows that the court did consider circumstantial evidence, and indeed, discussed it in some detail. The Moreira court was unconvinced that the circumstantial evidence was sufficient to defeat summary judgment because there was no evidence to show any connection between the plaintiff's injuries and action by the police. The distinction in this case is the expert opinion evidence that Mount's injuries were sustained as the result of a beating.
In sum, questions of fact and of credibility prevent an award of summary judgment to the defense on the use of excessive force by Saratoga Springs police officers. This affects several of the arguments leveled by the defense at Plaintiff's various claims. Plaintiff's claims can be roughly divided between the alleged actions of police officers at the scene and those of supervisory and administrative City officials.
Claims Against Officers At The Scene.
Failure to Intervene. A claim of failure to intervene asserts 42 USC §1983 liability based on the occurrence of a constitutional violation and asserts that an officer was aware of the violation and had a reasonable opportunity to prevent harm but did not do so (see e.g. Thomas v. City of Troy, 293 F Supp 3d 282, 296 [ND NY 2018]). The factual and credibility questions as to the use of excessive force blunt Defendants' argument that no constitutional violation took place. The defense also argues there is no evidence that any officer was aware of any constitutional violation taking place. However, the sequence of events found in the record leaves open a question of fact as to who participated in the alleged beating, and concomitantly, who was aware that it was taking place.
Common-Law Assault and Battery. Again, the testimony discussed above, and in particular the medical expert affidavits offered by Plaintiff, reveal questions of fact that prevent summary judgment for Defendants on this claim.
Fourteenth Amendment Procedural Due Process. The main defense argument for dismissal of this claim is also defeated by questions of fact as to whether a beating administered by police officers hospitalized and ultimately killed Darryl Mount, thus depriving him of life and liberty without due process of law. The defense also argues that Plaintiff's claim is duplicative of her claim of false arrest, but this argument is rendered moot by Plaintiff's withdrawal of her false arrest claim.
Substantive Due Process. Defendants argue that Plaintiff's substantive due process claim must be dismissed because the availability of a specific constitutional guarantee precludes use of broader substantive due process analysis (see e.g. People ex rel. Figueroa v. Keyser, 193 AD3d 1148 [3d Dept 2021]). Defendants assert that Plaintiff's claim is properly analyzed under the [*6]Fourth Amendment protection from unreasonable searches and seizures. On the record here, however, there does not appear to have been either a search or a seizure. Mount was briefly handcuffed, but not arrested. As noted above, Plaintiff has withdrawn her false arrest claim. Both sides cite Okin v. Village of Cornwall-On-Hudson Police Dept. (577 F3d 415 [2d Cir 2009]) as setting forth the standard, which is conduct that is so egregious and outrageous that it shocks the contemporary conscience, with the specific example of intentionally inflicted injuries (Id. at 431). While the Okin opinion also points out that negligently inflicted injuries are "categorically beneath the threshold of constitutional due process" (Id.), the determination of intent or negligence will be made by the finder of fact.
Individual vs. Official Capacity. Defendants argue that Plaintiff's federal constitutional tort claims against the individual officers under 42 USC §1983 must be dismissed because they are duplicative of Plaintiff's claims against the City of Saratoga Springs. Defendants assert that the officers are being sued in their official capacities. A suit against a municipal employee in their official capacity is indeed the same as suing the municipality (see e.g. Pittman v. Billings, 2020 WL 2079440 [ND NY Apr. 30, 2020, No. 5:20-CV-0422 (GLS/ATB)]).
In her Complaint and Bill of Particulars, Plaintiff alleges that the individual police officers acted "under color of law" and/or in compliance with policies, customs, or practices of defendant City. These are necessary allegations Plaintiff must make to seek relief under §1983, and in particular, to assert so-called Monell claims, which will be discussed below. Alleging actions taken "under color of law" is not synonymous with "official capacity" (see 2 Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §6:52 [2023-2024 ed.]). This ground for Defendants' motion fails.
Qualified Immunity. The Complaint alleges that the individual defendant police officers, acting in concert with each other, subjected Darryl Mount to unnecessary and unreasonable force and inflicted severe blunt force trauma, which injured him and ultimately caused his death. Defendant argues on this motion that the officers involved are entitled to qualified immunity. By the case authority cited by Defendants, an officer is entitled to qualified immunity if (1) his or her actions do not violate a clearly established constitutional right or (2) it was objectively reasonable for the officer(s) to believe that their conduct did not violate a clearly established right (Hartline v. Gallo, 546 F3d 95, 102 [2d Cir 2008]). Defendants argue that none of their activities in pursuing and briefly handcuffing Darryl Mount, and taking photos of the alleyway violated a clearly established constitutional right and it was objectively reasonable for the officers to believe that their conduct did not violate such a right. The one action not discussed by the defense, however, is the alleged beating. Because there is a question of fact as to whether Darryl Mount was beaten by police, there is also a question of fact as to whether qualified immunity applies.
Respondeat Superior Doctrine. In the Second Amended Complaint, Plaintiff alleges that defendant City of Saratoga Springs is liable for the acts of the individual defendants who are members of the Saratoga Springs Police Department under the doctrine of respondeat superior, pursuant to which liability for the wrongful or tortious acts of an employee or subordinate can be imputed to a supervisor or employer (Riviello v. Waldron, 47 NY2d 297 [1979]). However, federal case law holds that government officials cannot be held liable for the unconstitutional conduct of their subordinates simply because they exercise supervisory authority; something more is necessary. In other words, respondeat superior does not apply to claims of unconstitutional conduct (Monell v. New York City Dept. of Social Servs., 436 US 658 [1978]; [*7]Ashcroft v. Iqbal, 556 US 662 [2009]). This principle applies to the analysis of Plaintiff's claims against defendants City of Saratoga Springs, Chief Gregory J. Veitch, Sgt. Aaron P. Benware and Chris Mathiesen as Commissioner of the Department of Public Safety, which will be discussed below.
Monell Claims. The Fourth Cause of Action in the Complaint asserts a 42 USC §1983 claim against defendant City of Saratoga Springs as provided for under Monell and its progeny. Monell claims assert liability against a municipality for deprivation of civil rights by municipal employees that is caused by a governmental custom, policy, or usage. Again, Defendants' first argument — that there was no underlying constitutional violation to support any Monell claims against the City — fails based on the discussion above; there is a question of fact as to whether police officers administered a beating to Mr. Mount and a concomitant question of fact as to a constitutional violation. The defense also argues, however, that there is no record of any of the accepted bases for imputing liability to the City; i.e., no evidence of an unconstitutional policy or practice and no evidence that any such policy or practice caused the violation being alleged.
Plaintiff responds by pointing to case authority to support her claim that City officials failed to supervise its police officers sufficiently. The Court's reading of these cases shows two opinions that appear to guide Plaintiff's arguments most prominently. First, Vann v. City of New York (72 F3d 1040 [2d Cir 1995]) lays out the test for §1983 liability for unconstitutional acts by municipal employees below the policymaking level. The Vann opinion notes that liability can attach for the use of excessive force by police officers if the municipality was alerted to the possible use of excessive force and exhibited "deliberate indifference." Proof of deliberate indifference can take the form of repeated complaints of civil rights violations with no meaningful attempt to investigate or to prevent further incidents. It can also be shown by expert testimony that a practice condoned by the municipality presented an unusually high risk that constitutional rights would be violated (Id. at 1049).
Plaintiff offers the expert affidavit of Kevin M. Connolly, a former Detective Lieutenant for the Albany Police Department who at one time supervised internal affairs investigations for that department. Connolly opines, based on his review of the record in this case, that the failure of the Saratoga Springs Police Department to conduct an internal affairs investigation of the incident at issue here was part of a continuum of such failures existing before and after this event, which produced a custom and culture of ignoring and/or covering up misconduct by officers, who thus knew that "management would look the other way." Connolly opines that the failures of the Police Department and the culture that they created were the direct and proximate cause of the beating alleged to have been administered to Darryl Mount, because the officers involved believed they could act with impunity.
The second case is Amnesty America v. Town of West Hartford (361 F3d 113 [2d Cir 2004]). Having been written some nine years after Vann, the Amnesty America opinion traces the continued development of Monell jurisprudence, and in particular the concept of deliberate indifference; i.e. a policymaker's awareness of unconstitutional actions by subordinates and conscious decision to ignore them, effectively ratifying them. (Id. at 126). The Amnesty America opinion states:
Because deliberate indifference need not be proven by any particular method, and need not involve allegations of a repeated failure to act, [the policymaker]'s witnessing of a single, isolated act of brutality might be sufficient to allow a factfinder to infer deliberate [*8]indifference if the use of force were so extreme as to leave no doubt that [the policymaker] chose not to act (Id. at 129).
Plaintiff points to deposition testimony by Sgt. Benware and Det. Sgt. Sicko, as well as Chief Veitch, indicating that within 24 hours of the incident, Chief Veitch was made aware of complaints by Mount's mother and girlfriend that police officers had beaten him. Both Veitch and Sicko testified that such allegations merited an Internal Affairs investigation under the City's policy known as General Order 25, yet Veitch admitted that such an investigation was never begun. Plaintiff further recites Veitch's testimony that he intentionally misled a member of the press by telling her an Internal Affairs investigation was being conducted. Two days after the incident, Veitch sent an email to Lt. Robert Jillson, in which he asked Jillson to convey a message to officers at roll call, which states in part:
In response to the defense motion, then, Plaintiff has offered an expert opinion that a practice condoned by the City was the proximate cause of the beating alleged here. That expert's opinion is based on accepted standards for internal affairs investigations and upon evidence found in the record. It is not mere speculation and would, if offered at trial, support Plaintiff's claim (see Ann JJ. v. Schenectady Assn. for Retarded Citizens, 59 AD3d 772 [3d Dept 2009]). Plaintiff has also pointed to evidence in the record supporting a question of fact as to Chief Veitch's deliberate indifference to allegations of a constitutional violation committed against Darryl Mount.
It must be acknowledged that Plaintiff's argument invites the Court to take the Amnesty America holding a step further toward its logical extreme. There is no claim that Chief Veitch witnessed the beating alleged here. Still, this is a summary judgment motion, not a trial. There is evidence in the record that Chief Veitch was made aware of the complaints lodged by Darryl Mount's mother and girlfriend within twenty-four hours of the incident; that Veitch knew an internal affairs investigation was warranted but took no action to institute one; and that Veitch's actions were motivated by a desire to protect the police department from civil litigation. Viewing the record in a light most favorable to Plaintiff, there is a factual question as to whether Chief Veitch intentionally and knowingly refused to institute an Internal Affairs investigation of the incident in question in order to suppress information about — and to protect the Saratoga Springs Police Department from the effects of — the possibility that Darryl Mount was beaten by police officers and whether Veitch was thus deliberately indifferent to the constitutional violation alleged by Plaintiff.
Supervisory Liability. The Complaint alleges supervisory liability claims against defendants Veitch, Mathiesen and Benware for "supervising, overseeing, directing, controlling, approving and/or ratifying" the actions of the police officers in violating Darryl Mount's [*9]constitutional rights. This claim is similar to, but distinct from Plaintiff's Monell claim in that it alleges individual rather than institutional liability. Again, the primary defense argument that there was no constitutional violation is not sufficient to support summary judgment.
The defense also argues that Plaintiff's supervisory liability claims must fail under the rule enunciated in Tangreti v. Bachmann (983 F3d 609 [2d Cir 2020]). The Tangreti opinion holds that in order to succeed on a claim of supervisory liability under §1983, a plaintiff must plead and prove that the supervisor, through their own individual actions, violated the Constitution (Id. at 618). It is worth noting that the context of the Tangreti case was an allegation that the supervisor had violated the Eighth Amendment, the test for which employs the "deliberate indifference" standard, similar to that discussed above in reference to Plaintiff Monell claims. The Tangreti opinion notes that deliberate indifference in this context requires a showing that the supervisor personally knew of, and disregarded, a substantial risk of harm to the plaintiff (Id. at 619).
The constitutional violations alleged in this case center on the beating of Darryl Mount. The allegations against defendants Veitch and Mathiesen, and the factual evidence offered in support of those allegations, are consistent with the allegations made in connection with Plaintiff's Monell claims and center on their actions — and more specifically, their inaction — after the beating. There is no indication that either Veitch or Mathieson had advance personal knowledge of a risk of harm to Darryl Mount and disregarded it. On the other hand, there is a question of fact as to whether Sgt. Benware participated directly in the violation of Darryl Mount's constitutional rights. This portion of the defense motion succeeds as to Veitch and Mathieson, but fails as to Sgt. Benware, who occupied a supervisory position with respect to other officers involved in the pursuit and the alleged beating of Mount.
Negligence. Defendants argue that any negligence-based claims, including negligent supervision or negligent hiring, asserted in Plaintiff's Verified Bill of Particulars, must be dismissed because of Plaintiff's failure to mention them, either directly or indirectly, in her Notice of Claim. Plaintiff argues that there was sufficient information in the Notice of Claim to enable the City to investigate.
A Notice of Claim is liberally construed. General Municipal Law §50-e(6) provides a court reviewing the sufficiency of a Notice of Claim with discretion to correct or disregard a mistake or irregularity, so long as doing so will not prejudice the defendant municipality. When evaluating the sufficiency of the Notice of Claim, the Court can utilize the transcript of Plaintiff's examination pursuant to General Municipal Law §50-h (see e.g. D'Alessandro v. New York City Tr. Auth, 83 NY2d 891 [1994]; Svartz v. Town of Fallsburg, 241 AD2d 799 [3d Dept 1997]). Leaving aside the parties' debate as to the sufficiency of the language found in the Notice of Claim, Plaintiff's testimony at the §50-h hearing conducted in this case includes her own opinions and those of her confidants concerning the consistent use of excessive force by the police department and the presence of "new rookie police officers" which posed a threat to her son and to the community. This testimony, given to defense counsel at the outset of this case, is sufficient to enable the City to anticipate and investigate claims of negligent supervision and negligent hiring.
The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by Defendants seeking summary judgment dismissing the Complaint in this action is GRANTED IN PART as follows:
a. All claims asserted by Plaintiff, insofar as they are based specifically on alleged racial profiling, are dismissed andb. All claims sounding in supervisory liability against defendant Chief Gregory J. Veitch and defendant Chris Mathiesen, Commissioner of the Department of Public Safety, are dismissed;and it is furtherORDERED, that Defendant's motion is denied in all other respects.
September 18, 2023ENTER
Thomas D. Buchanan
Supreme Court Justice
Papers considered:
Notice of Motion; Affirmation of John D. Aspland, Esq. with annexed exhibits; Memorandum of Law; Affirmation of Brian H. Breedlove, Esq., with annexed exhibits Affidavit of George J. Shaw, M.D.; Affidavit of Cyril H. Wecht, M.D.; Affidavit of Kevin Connolly; Memorandum of Law; Reply Memorandum of Law.
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