Opinion
6168 Index 101885/15
04-03-2018
Suzannah B. TROY, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al, Defendants–Respondents.
Suzannah B. Troy, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondent.
Suzannah B. Troy, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondent.
Friedman, J.P., Sweeny, Gesmer, Kern, Singh, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about August 24, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for a default judgment, and granted defendants' cross motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's motion for a default judgment was properly denied. All of the named defendants appeared and answered the complaint with the exception of Sergeant Chen, and there is no proof that Chen was ever served with process.
The motion to dismiss was also properly granted. Plaintiff's federal claims are barred by the doctrine of res judicata, as they were dismissed on the merits in a prior federal action ( Troy v. City of New York, 2014 WL 4804479, 2014 U.S. Dist LEXIS 136339 [S.D.N.Y.2014], aff'd 614 Fed.Appx. 32 [2d Cir.2015] ; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).
Plaintiff also failed to state any valid state-law claims. Plaintiff's claims that are based upon a failure to investigate, were properly dismissed as it involved an exercise of discretion for which defendant cannot be held liable (see Matter of Burtis v. New York City Police Dept., 294 A.D.2d 315, 742 N.Y.S.2d 545 [1st Dept. 2002], lv denied 98 N.Y.2d 612, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002] ). To the extent the claims are based upon negligent hiring, retention, supervision, or training, they were properly dismissed because where, as here, "an employee is acting within the scope of his or her employment, ... no claim may proceed against the employer for negligent hiring or retention" ( Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 [1st Dept. 1997] ).
Plaintiff's claim for intentional infliction of emotional distress must fail because she did not allege the requisite extreme and outrageous conduct (see Howell v. New York Post Co., 81 N.Y.2d 115, 121–122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ), and her claim for coercion in violation of Penal Law § 135.60 fails because coercion is a criminal offense that does not imply a private right of action (see Minnelli v. Soumayah, 41 A.D.3d 388, 839 N.Y.S.2d 727 [1st Dept. 2007], lv dismissed 9 N.Y.3d 1028, 852 N.Y.S.2d 11, 881 N.E.2d 1198 [2008] ).
Furthermore, defendant New York City Police Department should be dismissed from the action on the independent ground that it is a non-suable agency of the City (see New York City Charter § 396; Matter of Carpenter v. New York City Hous. Auth., 146 A.D.3d 674, 46 N.Y.S.3d 49 [1st Dept. 2017], lv denied 29 N.Y.3d 911, 63 N.Y.S.3d 1, 85 N.E.3d 96 [2017] ).
We have considered plaintiff's remaining arguments and find them unavailing.