Bah v. City of N.Y.
| Decision Date | 26 August 2014 |
| Docket Number | Index No. 29770-2010 |
| Court | New York Supreme Court |
| Parties | AMINA BAH, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK POLICE DEPARTMENT, POLICE OFFICER DARRELL SHANNON, POLICE OFFICER GLENDA HOLLOMAN, POLICE OFFICER CHRISTOS DRAKAKIS, AND POLICE OFFICER MOHAMMED RIOS, Defendants. |
2014 NY Slip Op 33501(U)
AMINA BAH, Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK POLICE DEPARTMENT,
POLICE OFFICER DARRELL SHANNON, POLICE OFFICER GLENDA HOLLOMAN,
POLICE OFFICER CHRISTOS DRAKAKIS, AND POLICE OFFICER MOHAMMED RIOS, Defendants.
Index No. 29770-2010
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - PART 25
Printed: April 3, 2015
FILED: August 28, 2014
August 26, 2014
DECISION
HON. DAWN JIMENEZ-SALTA
Recitation, as required by CPLR 2219(a), of the papers considered in the review of:
1. Defendants the City of New York, New York Police Department, Police Officer Darrell Shannon, Police Officer Glenda Holloman, Police Officer Christos Drakakis, and Police Officer Mohammed Rios' Summary Judgment Motion dated December 11, 2013;
2. Plaintiff Aminah Bah's Affirmation in Opposition dated April 2, 2014; and
3. Defendants the City of New York, New York Police Department, Police Officer Darrell Shannon, Police Officer Glenda Holloman, Police Officer Christos Drakakis, and Police Officer Mohammed Rios' (hereafter collectively "the City of New York") Reply Affirmation dated May 29, 2014.
| Papers | Numbered |
| Summary Judgment Motion and Affirmation in Support | Defendant 1-2 (Exhs. A-L) |
| Affirmation in Opposition | Plaintiff 1 (Exhs. A-B) |
| Reply Affirmation | Defendant 3 |
Upon the foregoing papers, Defendants the City of New York, New York Police Department, Police Officer Darrell Shannon (hereafter "Shannon"), Police Officer Glenda Holloman (hereafter "Holloman"), Police Officer Christos Drakakis (hereafter Drakakis"), and Police Officer Mohammed Rios (hereafter "Rios") move for an order pursuant to CPLR 3212 granting partial summary judgment of the Complaint, dismissing every cause of action except the third and fourth as alleged against Defendant the City of New York and the fifth as alleged against Defendant Holloman. For the reasons set forth below, Defendants' motion is GRANTED IN PART and DENIED IN PART.
This is an action for damages for personal injuries sustained by Plaintiff Aminah Bah on June 4, 2010, at approximately 8 a.m. in her apartment located at 886 Lafayette Avenue in Brooklyn (hereafter the "Premises").
During the morning of June 4, 2010, Ms. Zela Scott (hereafter "Ms. Scott") called 911 emergency services to report a trespasser within the Premises. Ms. Scott, the landlord and owner of the Premises, reported that a man who did not have permission to be within the Premises was trespassing. Thereafter, a call went out over the police
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radio for assistance. All four (4) police officer Defendants responded. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Upon arriving, the police officer Defendants met Ms. Scott outside the Premises to discuss her emergency call. After their discussion, Ms. Scott directed the four (4) officers to Plaintiff's apartment. Upon knocking on the door, a man answered. The man was Mr. Yahya Shakur (hereafter "Mr. Shakur"). The police officer Defendants identified themselves and asked for permission to enter. With Mr. Shakur's permission all four (4) police officer Defendants entered Plaintiff's apartment and walked into the kitchen area to discuss Ms. Scott's criminal complaint. Plaintiff then appeared, entered the kitchen area, and engaged the officers in conversation. After speaking with Mr, Shakur it was established that the alleged trespasser was, in fact, Plaintiff's boyfriend.
Regarding the events that occur immediately thereafter, of which give rise to the present civil action, the parties offer conflicting versions. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Plaintiff served a Notice of Claim on June 25, 2010. Plaintiff appeared and testified at a statutory hearing pursuant to General Municipal Law § 50-h on August 20, 2010. Plaintiff commenced the present action with the filing and service of a Summons and Verified Complaint on November 1, 2010. Defendant the City of New York joined issue by service of its Answer on December 30, 2010. Plaintiff served a Verified Bill of Particulars on February 8, 2011. On March 9, 2012, Plaintiff served a Supplemental Summons and Amended Complaint upon Defendants Shannon, Holloman, Drakakis, and Rios. Defendant the City of New York, served an Answer to Plaintiff's Amended Complaint and Demands on behalf of all Defendants on July 27, 2012, On May 30, 2012, Honorable Richard Velasquez granted Defendants' Motion to Dismiss Plaintiff's proposed amendments to the Complaint to further amplify her Monell claims pursuant to 42 U.S.C. § 1983. [Defendant 1-2 (Exhs. A-L).]
A preliminary conference was held on March 24, 2011. On June 22, 2011, Defendants provided a response to the Preliminary Conference Order. On June 5, 2012, November 22, 2012, and March 5, 2013, all parties entered into compliance conference orders. Defendant Holloman appeared for an examination before trial (hereafter "EBT") on December 2, 2011. Defendant Drakakis appeared for an EBT on October 3, 2012. Defendant Rios appeared for an EBT on October 10, 2012. All parties deposed witness Mr. Shakur on December 12, 2011. Defendant Shannon appeared for an EBT on August 8, 2013. Plaintiff served the Note of Issue, and discovery was completed on August 13, 2013. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York now moves for summary judgment on several grounds. Defendant contends that on on the morning of the incident: (1) Ms. Scott, stated that there was a man or people in her building whom she did not recognize, had threatened her, and that Plaintiff was not permitted to bring her boyfriend to her apartment; (2) as the police officer Defendants attained Plaintiff's boyfriend's identity, Plaintiff left their presence and went into her bedroom; (3) Defendant Holloman then made repeated requests that Plaintiff return to the conversation; (4) Defendant Holloman sought after Plaintiff and asked for permission to enter the bedroom; (5) Defendant Holloman entered the bedroom, observed Plaintiff naked, asked her to get dressed, and to return to the kitchen to finish the discussion; Plaintiff refused to return to the discussion; Defendant Holloman then explained that further refusal would require her to lead Plaintiff to the kitchen; (6) after refusing to leave the bedroom, for safety concerns, Defendant Holloman "grabbed [Plaintiff] by the wrist and forearm and led her into the kitchen area" [Defendants 2, paragraph 10.]; and (7) Plaintiff was not arrested, handcuffed, nor was she given a summons, [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
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Defendant the City of New York now argues that pursuant to General Municipal Law § 50-e and § 50-i Plaintiff is barred from bringing suit against Defendants Shannon, Holloman, Drakakis, and Rios because Plaintiff did not timely file a notice of claim against them. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York argues that Plaintiff's State and Federal causes of action for false arrest and false imprisonment fail because as a matter of law the police officer Defendants had probable cause to detain Plaintiff. The aforesaid probable cause being based on a burglary call from an identified citizen complaint. Defendant the City of New York also points out that: (1) the Answer raises legal justification as an affirmative defense; (2) Ms. Scott accompanied the officers to the Premises; and (3) Defendant Holloman felt the situation was unsafe. Defendant the City of New York contends that probable cause existed at the time that Plaintiff refused Defendant Holloman's directive to exit the bedroom and return to the kitchen, [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York argues that Plaintiff's claim for malicious prosecution be dismissed because Plaintiff was not the subject of a criminal proceeding. Plaintiff was detained in her apartment during an investigation of a burglary complaint. Defendant the City of New York points out that the police officer Defendants left the Premises without issuing a summons. And therefore, the malicious prosecution claims must fail. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York argues that the Court should dismiss Plaintiff's claim for excessive force against Defendants Shannon, Drakakis, and Rios because they had no physical contact with Plaintiff. There is no evidence or testimony that any force was used at any time by Defendants Shannon, Drakakis, and Rios. Defendant's point out that Plaintiff testified that Officer Holloman was the only officer who made physical contact with her. [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York argues that the Court should dismiss Plaintiff's claim for negligent hiring, retention, and training. Defendant admits that the four police officer Defendants were acting within the scope of their employment at the time of the incident, [Defendant 1-2 (Exhs. A-L); Plaintiff 1 (Exhs. A-B); Defendant 3.]
Defendant the City of New York argues that Plaintiff's claims pursuant to 42 U.S.C. § 1983 should be dismissed because the police officer Defendants are protected...
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