Opinion
Index No.: 304079/2014
07-02-2019
DIMETRIS POWELL, Petitioner, v. THE CITY OF NEW YORK, Respondent.
Present: Decision/Order Recitation as Required by CPLR §2219(a): The following papers were read on this Motion to Dismiss
| Papers Numbered | |
| Notice of Motion, Affirmation in Support of Motionwith exhibits | 1 |
| Notice of Cross Motion, Affirmation in Opposition to motionand in support of cross motion | 2 |
| Affirmation in Opposition to cross motion andin Further support of Motion Reply | 3 |
| Reply Affirmation in further support of cross motion | 4 |
Upon the foregoing cited papers, the Decision of this Court is as follows:
In this action for false arrest, false imprisonment, excessive force, malicious prosecution, and claims under 42 U.S.C. § 1983, Defendant moves to dismiss pursuant CPLR § 3211. Plaintiff cross-moves for leave to amend his complaint to name Detective Felix Gross as a defendant.
For the reasons set forth herein below, Defendant's motion is granted pursuant to CPLR 3211, and Plaintiff's cross-motion is denied.
On September 23, 2011, Plaintiff was arrested in Manhattan and charged with robbery and weapons possession. He was subsequently incarcerated until around October 2012. The charges against Plaintiff were dismissed at the recommendation of the District Attorney on January 10, 2014. Plaintiff erroneously alleged in his notice of claim, verified bill of particulars, and complaint that the charges were dismissed on January 21, 2014, the date noted on the Certificate of Disposition. However, that document specifies that the charges were dismissed on January 10. Plaintiff's complaint, filed July 30, 2014, contains boilerplate language alleging a variety of injuries and claims related to his arrest and incarceration. In his Verified Bill of Particulars, dated June 3, 2015, and his proposed amended complaint, Plaintiff alleges multiple claims of physical, mental, and emotional pain and anguish. The Court notes that in Plaintiff's 50-h hearing, he testified that as a result of his arrest and the period of confinement at issue, he did not sustain any physical injuries, and has not sought treatment with any mental health care professionals, but that it "drove [him] crazy."
In Plaintiff's proposed amended complaint, Plaintiff alleges that proposed Defendant, Detective Felix Gross, subjected Plaintiff to false arrest, false imprisonment, and malicious prosecution. Plaintiff further alleges in the proposed amended complaint that prior to his arrest, Detective Gross pursued the arrest and prosecution of the Plaintiff despite coming into possession of a surveillance video that constituted exculpatory evidence.
Plaintiff's claims arise from his arrest on September 23, 2011 and subsequent release around October 2012 after making bail. The charges against him were dismissed on January 10, 2014, notwithstanding Plaintiff's apparent misunderstanding of the date as January 21, 2014 as asserted in his cross-motion. Due to these dates, Plaintiff served a notice of claim on the City on April 15, 2014, 95 days after the charges against him were dismissed.
Plaintiff's claim for unlawful imprisonment accrued when he was released from prison sometime in October 2012, and his claim for malicious prosecution accrued on January 10, 2014, when the proceeding against him was terminated in his favor by dismissal (Nunez v. City of New York, 307 A.D.3d 218, 219 [1st Dep't 2003)]. Plaintiff's complaint states that the charges against him were dismissed on January 24, 2014, but he is mistaken. Instead, the order detailing the dismissal was filed on the 24th of January, but specifies that the charges were dismissed on the 10th. As such, Plaintiff was required under General Municipal Law Section 50-e to file notice of claim within 90 days of January 10, 2014 but filed five days late for the malicious prosecution claim, the chronologically last state-law claim that accrued.
When a notice of claim is served beyond the required ninety-day period without leave of the court, it is deemed a nullity (Wollins v. N.Y. City Bd. Of Educ., 8 A.D.3d 30, 31 [1st Dep't 2004]; Van Der Lugt v. City of New York, 36 A.D.2d 915, 915 [1st Dep't 1971]). Because of the five-day deficit, Plaintiff's failure to seek leave to file late notice of claim, and Plaintiff's failure to seek a court order excusing such lateness within a year and 90 days of the accrual of his claims, the court is constrained to dismiss the state law claims based on Plaintiff's failure to timely serve a notice of claim (McGarty v. City of New York, 44 A.D.3d 447, 448 [1st Dep't 2007]).
As for Plaintiff's federal claims, Plaintiff moves under CPLR section 3025(b) to amend his complaint to add Detective Felix Gross and the New York City Police Department as Defendants, claiming that the doctrine of relation back allows the amendment. In order to sustain a § 1983 claim against a municipal employee, a plaintiff must name individual defendants involved in the misconduct (Robinson v. City of New York, 2011 U.S. Dist. LEXIS 9529 at *7 [E.D.N.Y. 2011]). A claim asserted against a defendant in an amended complaint can relate back to previously asserted claims against another defendant for the purposes of the statute of limitations if: first, both claims arose out of the same conduct, transactions, or occurrence; second, that 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; third, that the new party knew or should have known that but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well (Buran v. Coupal, 87 N.Y.2d 173, 178 [1995]). Plaintiff has failed to establish that Defendants are united in interest. Unity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other (Higgins v. City of New York, 144 A.D.3d 511, 512 [1st Dep't., 2016]). However, the City cannot be held vicariously liable for its employees' violations of § 1983 (Id.) Further, it is unclear whether Detective Gross and the City would assert the same defenses or whether he had notice that an action would have been brought against him because of his involvement in Plaintiff's arrest (Caselli v. New York, 105 A.D.2d 251 [2d Dep't 1984]). Based on the foregoing, the court finds that the relation back doctrine does not apply in this matter.
Plaintiff's complaint, as it is drafted, does not sufficiently set forth a valid claim under Monell for the purposes of § 1983. The Court notes that Plaintiff does not dispute Defendant's assertion that his Monell claim is inadequately pled in his complaint. However, even if, arguendo, the court were to grant Plaintiff's motion to amend, the Monell claim in the amended complaint is still insufficient in that it fails to sufficiently allege a policy or scheme on the part of the City to deprive Plaintiff of his rights and thus would not survive a motion to dismiss on the part of Defendant. Moreover, in his amended complaint, Plaintiff alleges that the City failed to adequately train its police officers resulting in arrest of plaintiff and thus depriving him of his civil rights. However, these conclusory allegations are both insufficiently pled and insufficient to sustain a cause of action under § 1983 (Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2006]; Ashcroft v. Iqbal, 556 U.S. 662, 678 [2008]). To sustain a § 1983 claim against a municipality, Plaintiff must plead and prove an official policy or custom that caused plaintiff to be subjected to a denial of a constitutional right (See Monell v. Dep't of Social Servs., 439 U.S. 658 [1978]; Batista v. Rodriguez, 702 F.2d 393, 397 [2d Cir. 1983]). The failure to train or supervise city employees has been held to constitute an official policy or custom if the failure amounts to, "deliberate indifference" to the Plaintiff's rights (Wray v. City of New York, 490 F.3d 189, 195 [2d Cir. 2007]). To establish deliberate indifference, Plaintiff must show that a policymaker knows to a "moral certainty" that city employees will confront a particular situation, that the situation either presents the employee with a difficult choice of the sort that training of supervision will make less difficult or there is a history of employees mishandling the situation, and that the wrong choice by the employee will frequently cause the deprivation of a citizen's constitutional rights. (Id. at 195-96, quoting Walker v. City of New York, 974 F.2d 293, 297-98 [2d Cir. 1992]). Plaintiff here alleges that Detective Gross's knowledge of the existence of a video that purportedly consisted of exculpatory evidence meets the standard for "deliberate indifference." However, based on the framework in Wray, Plaintiff's allegations do not meet the threshold for deliberate indifference. Plaintiff's proposed complaint makes bare conclusory allegations regarding the actions of policymaking officials at NYPD that constituted an official policy creating a failure to train City employees resulting in deliberate indifference. Plaintiff also fails to address that the District Attorney's office is an independent entity that is not an agent of the city, and thus defendants cannot be held liable for the District Attorney's decision to maintain Plaintiff's imprisonment on the basis of the purported video evidence (Narvaez v. City of New York, 83 A.D.3d 516, 517 [1st Dep't 2011]). According to the DA's Recommendation of Dismissal, the District Attorney did not attempt to obtain the surveillance video until October 2013, approximately one year after Plaintiff was released from custody. In addition to the foregoing, it is well settled that once an individual has been indicted, the law holds that said grand jury action creates a presumption of probable cause (Colon v. City of New York, 60 N.Y.2d 78 [1983]). The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts to the grand jury, or that they have misrepresented or falsified evidence, or otherwise acted in bad faith (Id.). Based on the record before the court, Plaintiff has failed to rebut the presumption of probable cause established by grand jury indictment.
Based on the foregoing, Defendant's motion is granted and the complaint is dismissed in its entirety. Plaintiff's cross-motion is denied. Defendant shall serve a copy of this order with notice of entry upon Plaintiff within 30 days of the entry date.
This constitutes the decision and judgment of the Court.
Dated: 7/2/19
Bronx, New York
/s/_________
HON MITCHELL J. DANZIGER, J.S.C.