Chavez v City of New York 2011 NY Slip Op 32733(U) September 26, 2011 Supreme Court, New York County Docket Number: /2009 Judge: Barbara Jaffe

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1 Chavez v City of New York 2011 NY Slip Op 32733(U) September 26, 2011 Supreme Court, New York County Docket Number: /2009 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] SCANNED ON SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: 7wpi&?,,Rn JAFFE J.S.C Index Number : /2009 CHAVEZ, RENE V6 CITY OF NEW YORK Sequence Number : 001 DISMISS INbEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. PART The following papers, numbered 1 to were read on thirr motion to/for Notice of Motion/ Order to Show Cause - Affldavits - Exhibits... Answering Affidavits - Exhibits Replylng Affidavits / 0 No Upon the foregoing paperrr, it is ordered that this motion PAPERS NUMBERED FILED SEP NEW YORK COUNTY CLERK'S OFFICE I I Check one: 0 FINAL DISPOSITION o N - F I N A t!? Ms PO s IT I o N Check if appropriate: 0 DO NOT POST REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. \.

3 [* 2] -against- P 1 aintiff, Index No /09 Subm.: 7/11/11 Motion Seq. No.: 001 DECISION & ORDER THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT, FILED For plaintiff: Robert Margulies, Esq. Drabkin & Margulies 120 Broadway, Ste. I 150 New York, NY 1027 I NEW YORK For defendagun TY CLERK'S OFFICE Cathy J. Neustein, ACC Michael A. Cardozo Corporation Counsel 100 Church St., Rm I New York, NY By notice of motion dated February 1 8,20 1 1, defendants move pursuant to CPLR 321 l(a) for an order dismissing plaintiffs federal civil rights and negligent hiring, training and supervision claims. Plaintiff opposes and, by notice of cross motion dated March 28,2011, moves pursuant to CPLR 3025(b) and for an order permitting him to amend his pleadings and compelling defendants to produce certain documents. Defendants oppose plaintiffs cross motion. On May 6,2009, plaintiff was allegedly sleeping in a vestibule at 47 West 20th Street in Manhattan when he was attacked by New York City Police Department (NYPD) police officers, including Officers Thomas Lobello and Michael O'Keefe, and the officers' police dogs, and falsely arrested. (Affirmation of Cathy J. Neustein, ACC, dated Feb. 18, meustein Aff.],

4 [* 3] Exh. A). On June 4,2009, plaintiff served City with a notice of claim in which he asserted claims for false arrest, excessive force, violations of his civil rights, assault and battery, attack by police dogs, and failure to supervise, train and control the dogs and personnel in control of the dogs. (Id). On or about December 15,2009, plaintiff served defendants with his summons and complaint in which he alleged claims for negligence, false arrest and other intentional torts, violation of his civil rights pursuant to 42 USC 1983 by the NYPD s unreasonable acts and omissions;,.. brutal police conduct and undue force upon plaintiff which shocks the conscience, all without justification; failure to comply with Federal, State and New York City rules, regulations and statutes including NYC Administrative Code 7-208; abuse of power, and punitive damages. (Id., Exh. B). On or about January 11,2010, defendants served their answer. (Id., Exh. C). II. DEFENnANTS MOTION AND PLAIN TIFF S MO TION TO Ah/LETclB e. Section 1983 claim 1. Contentions Defendants argue that plaintiffs section 1983 claim must be dismissed for failure to plead any evidentiary facts to support it or show that defendants alleged deprivation of plaintiffs constitutional rights resulted from a municipal custom or policy. (Neustein Aff.). Plaintiff contends that he should be permitted to amend his complaint to add specific factual allegations underlying his section 1983 claim and to add as additional defendants Officers Lobello and O Keefe and to assert a section 1983 claim against them based on their use of excessive force against him. (Affirmation of Robert Margulies, Esq., dated Mar. 28,2011 2

5 [* 4] [Margulies Aff.], Exh. G). In his proposed amended complaint, plaintiff alleges in support of his section 1983 claim: that it was defendants governmental policy, practice andlor procedure regarding the use of police dogs in arrests, especially where the suspect was already under the care, custody and control of the arresting and apprehending officers, which contributed and caused the incident to occur and certain U.S. Constitutional deprivations to plaintiff, including the Fourth and Fourteenth Amendment of the Constitution; that there have been patterns andor series of incidents of unconstitutional conduct which have caused attacks by police dogs, in similar instances as herein; that defendants acted recklessly including a general failure to supervise and a failure to select psychologically fit and properly trained persons to handle the police dog, that attacked him; that defendants failed to train sufficiently the NYPD canine unit in the constitutional use of canine force and failed to adequately supervise the performance of the members of the canine unit to insure that both misbehaving dogs and officers exercising bad judgment in the use of canine force received corrective training; that canine officers, including one of the officers at issue here, were inadequately trained, and that this failure to train was a policy of these defendants, and evidence [sic] deliberate indifference to the rights of persons including plaintiff; and that there is a high ratio of dog bites to apprehensions, and canine officers often used excessive force to apprehend individuals such as plaintiff. In reply, defendants contend that the section 1983 claim set forth in the amended complaint remains fatally conclusory. They also oppose plaintiffs motion to amend on the grounds that he failed to name the individual officers in his notice of claim and as his claims for federal civil rights violations and negligent hiring, training and supervision are insufficiently pleaded and/or not sustainable against them. (Reply Affirmation, dated May 2, [Reply Aff.]). Plaintiff, in reply, denies any obligation to name the officers in his notice of claim as he 3

6 [* 5] has asserted a section 1983 claim against them, which need not be alleged in a notice of claim. (Reply Affirmation, dated May 1 1, [May Reply Aff.]). 2. AnalysiS Pursuant to CPLR (a)(7), a party may move at any time for an order dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87 [1994]; Thomas v Thomas, 70 AD3d 588 [19t Dept 20101). The court need only determine whether the alleged facts fit within any cognizable legal theory. (Id). In order to assert a claim against a municipality based on the alleged tortious actions of its employees, the plaintiff must allege and plead that the alleged actions resulted from an official municipal policy or custom, (Monell v Dept. of Social Servs. of City of New York, 436 US 658 [ 19781; Leftenant v Cily ofnew York, 70 AD3d 596 [l Dept 20101; Leung v City ofnew York, 21 6 AD2d 10 [lst Dept 19951). In Burnbury v City ofnew York, the court found that plaintiff had sufficiently pleaded a section 1983 claim as the complaint gave defendant City fair notice of a custom or policy that would establish municipal liability under 42 USC by alleging gross negligence in failing properly to train, supervise and discipline its employees, resulting in injury. Such failure, it is alleged, amounted to deliberate indifference to the rights of individuals coming in contact with those employees... (62 AD3d 621 [lgt Dept 20091). Here, similarly, plaintiff has alleged that defendants were negligent in failing to train and supervise properly the officers and the canine unit, resulting in his injuries, and that such failure constituted deliberate indifference to the civil rights of individuals including him. (See also 4

7 [* 6] Johnson v Kings Counly District Attorney s Of, 308 AD2d 278 [2d Dept Lplaintiff pleaded section 1983 claim by alleging that defendants acted with deliberate indifference to his constitutional rights in failing to adequately train, supervise, and discipline their employees]). It is also undisputed that plaintiff is not required to plead his section 1983 claim in his notice of claim. (Rowe v NYCPD, 85 AD3d 1001 [2d Dept ; Pendleton v City ofnew Ydc, 44 AD3d 733 [2d Dept 20071; Tunnenbaum v City ofnew York, 30 AD3d 357 [lst Dept 20061). And, as plaintiff is seeking to assert only a section 1983 claim against the individual officers, he is not required to name them in his notice of claim. (See Tunnenbaum, 30 AD3d at 358 [although plaintiff did not name individual City employees in notice of claim, court should not have dismissed federal civil rights claim against employees]). B. Negligent hiring... and supervision.. claim 1, Contentiom Defendants maintain that plaintiff may not assert a claim against them for negligent hiring, training and supervision as they concede that the individual officers allegedly at fault were acting within the scope of their employment when the incident occurred. (Neustein Aff.). Plaintiff denies having asserted a specific claim for negligent hiring, training or supervision and alleges that the allegations concerning such a claim are merely part of his general claim of negligence. (Margulies Aff.). In reply, defendants observe that plaintiff specifically alleged that they failed to train and supervise the canine officers. (Reply Aff.). Plaintiff, in reply, argues that defendants failure to submit any documentary proof to support their concession that the officers were acting within the scope of their employment requires that any claims for negligent hiring, training or supervision not be dismissed. (May 5

8 [* 7] Reply Aff.), While a claim for negligent hiring, training and supervision must be dismissed when an employer has conceded that its employee was acting within the scope of his or her employment when the alleged tort was committed (see Delgado v City of New York, 86 AD3d 502 [ lbt Dept [to extent officers were acting within scope of employment, negligent hiring claim against municipal defendant not viable]; Griffin v City ofnew York, 67 AD3d 550 [l"dept [court properly refused to charge jury on claim of negligent hiring and retention of detective against City as City had stipulated that it was responsible for detective's actions]; Kuroon v New York City Tr. Auth., 241 AD2d 323 [lst Dept [as employee was concededly acting within scope of employment, negligent hiring, retention and training claim against employer dismissed]), here defendants' concession is made through counsel only. Thus, to the extent that plaintiff has asserted such a claim against defendants, and absent a clear concession by defendants that the officers were acting within the scope of their employment at the time of the alleged incident, the claim may not be dismissed. (See Pickering v State, 30 AD3d 393 [2d Dept [absent clear concession by defendant that officer acted completely within scope of employment, plaintiff entitled to discovery related to negligent hiring and training claims]; Butler v Cify ofnew York, 15 Misc 3d 1134[A], 2007 NY Slip Op 50974[U] [Sup Ct, Kings County [as City's answer denied allegation as to officer's scope of employment, plaintiff entitled to information related to negligent hiring and training claim]). 6

9 [* 8] 111. PLAINTIFF S MOTION TO COMPIEL, A. Contentions Plaintiff alleges that certain information requested from defendants is relevant and material to his claims, including Lobello s and O Keefe s personnel files, statements and investigative reports related to the incident, the officers training records, copies of training manuals and handbooks provided to the offxers, Internal Affairs Department (IA) files and records related to the investigation of the incident, disciplinary and command records, and on line booking records and reports. He argues that defendants have improperly failed to produce the records, relying on a New York State privilege that is inapplicable as he has asserted federal claims here. (Margulies Aff.). By letter dated May 12, 201 1, defendants submit documents in cumera and object to their production on various grounds. 1, Officers momel records As I have determined that plaintiff has sufficiently alleged a claim against defendants for negligent hiring, training and supervision, the officers personnel files are discoverable. (McFurlune v County of Suflolk, 79 AD3d 706 [2d Dept 20101; Blanco v County of Sufloolk, 51 AD3d 700 [2d Dept Lpolice officers personnel records were discoverable at they may contain information relevant and material to plaintiffs negligent hiring, retention, and supervision claims]; Picking, 30 AD3d at 394; Butler v City of New York, 15 Misc 3d 1134[A], 2007 NY Slip Op 50974[U]). Moreover, as plaintiff asserts federal civil rights claims, discovery is governed by federal 7

10 [* 9] law, which permits more liberal discovery. (See King v Conde, 121 FRJI 180 [ED NY 19881; Ramos v City ofnew York, 285 AD2d 284 [l" Dept 20011; see ulso Velez v City ofnew York, 2010 WL [ED NY [compelling City to disclose personnel records of police officers related to performance, training, and evaluations]). After reviewing the records provided, defendants are directed to provide plaintiff with the following bate-stamped documents, after redacting any personal information, such as telephone numbers, addresses, social security numbers, dates of birth and tax information of any individuals named or identified in the records: ; ; 449; and 454. However, it is unclear whether the complete personnel files for Officers Lobello and O'Keefe were provided in camera. Defendants also fail to provide a copy of any training handbooks given to the officers related to the canine unit or their training records, and must do so. 2, Investigative recorh Internal affairs and NYPD investigative records are discoverable, as are records of any disciplinary action taken against the officers, to the extent they contain information relevant to plaintiffs claims. (See McFarlane, 79 AD3d at 708; Blnnco, 51 AD3d at ; Evans v Murphy, 34 AD3d 427 [2d Dept 20061; McBride v City of Rochester, 17 AD3d 1065 [qth Dept 2005 J [defendants directed to produce post-incident investigation documents]; Mann v Alvarez, 242 AD2d 3 18 [2d Dept [IA records were relevant to plaintiffs federal claims and thus discoverable]; Spadaro v Balesteri, 237 AD2d 507 [2d Dept 19971, lv denied 90 NY2d 935 [court ordered production of recorded statements made during NYPD internal investigation]; Svaigsen v City ufnew Yo& 203 AD2d 32 [lst Dept 19941; Ramos, 285 AD2d at 307 [plaintiff 8

11 [* 10] entitled to information relating to internal discipline or other remedial action]; Lewis v City of New York, 17 Misc 3d 559 [Sup Ct, Bronx County [records created during NYPD internal investigation discoverable]). To the extent that the documents reference prior complaints made or disciplinary action taken against the officers, they are also discoverable. (See generally Van, v City of New York, 72 F3d 1040 [2d Cir Cplaintiff can show $ 1983 violation by demonstrating that muncipality, after being alerted to complaints of excessive force against officer, exhibited deliberate indifference]; Flores v City ofnew York, 207 AD2d 302 [let Dept [court s finding that three CCRB reports were relevant to action was not abuse of discretion as the prior incidents bear on the issue of notice regarding the officer s need for training in the appropriate use of force ]; Lawrence v City of New York, 118 AD2d 758 [2d Dept [court properly ordered disclosure of CCRB file related to prior incident involving similar act of misconduct by officer after finding that it was relevant to action and to officer s credibility]; Pendleton v City ofnew York, 21 Misc 3d 1141[A], 2008 NY Slip Op 52439[U] [Sup Ct, Kings County [defendants required to provide substantiated and unsubstantiated Complaints for in camera inspection relating to similar conduct as alleged by plaintiffl). Defendants are thus directed to produce the following documents: ; ; ; ; ; ; , and the interview tapes. However, it is unclear whether defendants provided in cameru a copy of all prior CCRB complaints and records of prior disciplinary actions against Lobello and O Keefe, and these must be provided. 9

12 [* 11] IV. CONCLUS ION Accordingly, it is hereby ORDERED, that defendants motion to dismiss is denied; it is further ORDERED, that plaintiffs cross motion to amend his complaint is granted and the amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; it is further ORDERED, that a supplemental summons and amended complaint in the form annexed to the moving papers shall be served in accordance with the Civil Practice Law and Rules upon the proposed additional parties in this action within 30 days after service of a copy of this order with notice of entry; it is further ORDERED, that upon said service, the action shall bear the following caption: RENE CHAVEZ, - against - Plaintiff, THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER THOMAS LOBELLO, SHIELD #21193, AND POLICE OFFICER MICHAEL O KEEFE, SHIELD # Defendants, It is further 10

13 [* 12] ORDERED, that counsel for the moving party shall serve a copy of this order with notice of entry upon the County clerk (Room 1416) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court s records to refleqt the additional parties; and it is further ORDERED, that plaintiffs cross motion to compel is granted to the following extent: a) Defendants are directed to provide plaintiff, within 30 days of the date of this order, with: (1) a copy of the bate-stamped documents specified above, after redacting any identifying personal information such as telephone numbers, addresses, social security numbers, dates of birth and tax information of any individuals named or identified in the records, and (2) any training handbooks andor training materials related to the canine unit; b) Defendants are directed to provide in camera, within 30 days of the date of this order, a copy of Lobello and O Keefe s complete personnel files, any prior CCRB complaints made against them, and any prior disciplinary actions taken against them; c) The records shall not be disclosed beyond the parties to this case and their attorneys; and d) If defendants cannot provide any of these records, they must provide an explanation by affidavit to chambers and opposing counsel within 30 days of this order. ENTER: 4 Barbara Jaffe, J I I DATED: September 26,201 1 New York, New York S P 2 6 2b11 NEW YORK COUNTY CLERK S OFFICE 11