Canete v. Metro. Transp. Auth.

• Decision Date: 20 September 2018
• Docket Number: 17 Civ. 3961 (PAE)
• Citation: Canete v. Metro. Transp. Auth., 17 Civ. 3961 (PAE) (S.D. N.Y. Sep 20, 2018)
• Parties: JULIO CANETE, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

JULIO CANETE, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants.

17 Civ. 3961 (PAE)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 20, 2018

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Julio Canete brings this action under 42 U.S.C. § 1983; the First, Fourth, and Fourteenth Amendments of the Constitution; and various provisions of state law, against the Metropolitan Transportation Authority ("MTA"), the Triborough Bridge and Tunnel Authority ("TBTA"), tunnel officer Lawrence Ffrench, and unnamed supervisory defendants identified as the "Richard Roes." Canete's 11 claims include false arrest, false imprisonment, assault, battery, intentional and negligent infliction of emotional distress, and trespass. As a basis for his claims against MTA and TBTA, he alleges that these agencies had de facto policies, practices, customs, and/or usages that brought about violations of his constitutional rights.

Pending now are partial motions to dismiss by defendants MTA and TBTA and a motion to strike by defendant Ffrench. Defendants seek to dismiss: (1) all claims against MTA; (2) six claims against TBTA and the Richard Roes; and (3) any claims for punitive damages from MTA or TBTA. Ffrench seeks to strike the allegations regarding his purported history of "a significant and habitual problem with alcohol abuse" and "habitually juvenile and immature" behavior. This decision resolves those motions.

I. Background

A. Factual Background¹

Around 7 p.m. on May 26, 2016, while crossing a street near the intersection of 92nd Street and Gatling Place in Brooklyn, New York, Canete was struck by a TBTA Operations Force police car. Dkt. 31 ("Amended Complaint" or "AC") ¶¶ 14-15. Canete was crossing lawfully, in a crosswalk; the TBTA vehicle was making an illegal left turn. Id. The incident left Canete severely injured and temporarily disoriented. Id. ¶ 16.

TBTA Officer Ffrench was driving the vehicle at the time of the accident. Id. ¶ 15. After striking Canete, Ffrench got out of his car and moved Canete, who was on the ground injured, into the backseat of the car. Id. ¶ 19. Ffrench then drove Canete over the Verrazano Narrows Bridge into Staten Island. Id. ¶ 21. He pulled into a parking lot and left Canete on the ground in the lot. Id. ¶ 24. Ffrench told Canete not to tell anyone about the incident and then drove away. Id. ¶¶ 25-26.

After Ffrench left, Canete called 911 from the parking lot. Id. ¶ 30. Emergency Medical Technicians and members of NYPD responded; Canete was placed in an ambulance. Id. ¶¶ 31-32. Ffrench, whom Canete believes heard police radio calls about Canete, returned to the scene, entered the ambulance, and again told Canete not to tell anyone about the accident. Id. ¶¶ 33-35.

Canete was taken to Staten Island University Hospital, where he was treated for his severe injuries. ¶ 36. He continues to suffer physical pain from these injuries. Id. ¶ 37. They have prevented Canete from working his usual job and have caused economic loss. Id. ¶ 40.

The Amended Complaint also alleges that Ffrench had a history of alcohol abuse and immature behavior. Id. ¶ 41. It attaches Facebook postings of Ffrench where he poses with or makes statements about alcohol. See Dkt. 31-1.

B. Procedural History

On May 25, 2017, Canete filed an initial Complaint against Ffrench, the MTA, TBTA, and the Richard Roes. Dkt. 1. On June 28, 2017, MTA and TBTA filed an Answer, and brought a crossclaim against Ffrench. Dkt. 12.

On October 5, 2017, Canete filed the AC against the same defendants. Dkt. 31. Canete brings 11 claims:

• Count One: deprivation of rights under 42 U.S.C. § 1983 by Ffrench;

• Count Two: deprivation of rights under 42 U.S.C. § 1983 by Richard Roes due to a failure to train and supervise subordinates (including, presumably, Ffrench);

• Count Three: deprivation of rights under 42 U.S.C. § 1983 by MTA and TBTA for having de facto policies, practices, customs, and/or usages that led to the violation of constitutional rights;²

• Count Four: respondeat superior liability on the part of MTA and TBTA for state law violations;

• Counts Five through Eight: state law assault, battery, false arrest, false imprisonment, trespass, and intentional and negligent infliction of emotional distress claims against Ffrench;

• Count Nine: state law negligence claims against all defendants;

• Count Ten: state law negligent hiring, screening, retention, supervision, and training claims against MTA and TBTA;

• Count Eleven: violation of the New York Constitution by all defendants.

See AC ¶¶ 44-80.

On October 23, 2017, MTA and TBTA filed a partial motion to dismiss the AC, Dkt. 32, and a memorandum of law in support. Dkt. 32-8 ("Def. Br."). They seek to dismiss all claims against MTA, arguing it is an improper defendant. Id. at 6. They further seek to dismiss the Second, Third, Tenth, and Eleventh Causes of Action in their entirety; the Fourth and Ninth Causes of action to the extent that they seek to hold MTA and TBTA liable for offenses outside of Canete's earlier Notice of Claim; and all claims for punitive damages. Dkt. 32.

On November 27, 2017, Canete filed a memorandum of law in opposition to the motion to dismiss. Dkt. 42 ("Pl. Br."). On December 13, 2017, MTA and TBTA filed a reply in further support of the motion to dismiss. Dkt. 46 ("Def. Reply").

On October 24, 2017, Ffrench filed his motion to strike. Dkt. 34. On November 3, 2017, Canete filed his opposition. Dkt. 39. On November 11, 2017, Ffrench filed his reply. Dkt. 40.

II. Applicable Legal Standards

A. Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In considering a motion to dismiss, a district court must "accept[ ] all factual claims in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff's favor." Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting Famous Horse Inc. v.5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010) (internal quotation marks omitted)). However, this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "[R]ather, the complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570) (internal quotation marks omitted) (emphasis in Arista Records). A complaint is properly dismissed where, as a matter of law, "the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558.

B. Motion to Strike

"The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Unless it is clear that the portion of the pleading has no bearing on the subject matter of the litigation and that its inclusion will prejudice the defendant, the complaint should remain intact." FRA S. p. A. v. Surg-O-Flex of Am., Inc., 415 F. Supp. 421, 427 (S.D.N.Y. 1976); see also Acco, Ltd. v. Rich Kids Jean Corp., No. 15 CIV. 7425 (JSR), 2016 WL 3144053, at *2 (S.D.N.Y. Apr. 11, 2016) (citing FRA S. p. A.)

III. Discussion

Defendants seek dismissal of: (1) all claims against MTA, on the grounds that MTA is not a proper defendant to this action; (2) all claims of respondeat superior liability against MTA and/or TBTA, on the grounds that Canete fails to state a claim of a governmental policy or custom, as required by Monell v. Department of Social Services, 436 U.S. 658 (1978); and (3) all claims arising from injuries incurred post-accident, on the grounds that those claims were notproperly preserved in Canete's notice of claim. The Court addresses these issues in turn, followed by a discussion of Ffrench's motion to strike.

A. The Claims Against MTA

MTA seeks to dismiss all claims against it, arguing that MTA is not a proper defendant to this action. Def. Br. at 6. MTA claims that it owed no duty of care to Canete as a matter of law, because Ffrench was employed only by the TBTA. Id. at 6-7. The AC alleges the entities are interrelated affiliates, AC ¶¶ 8-11, and that discovery related to TBTA and MTA should be permitted to clarify which is responsible for Ffrench conduct. Pl. Br. at 4-5.

At this pleadings stage, the Court sides with Canete. To be held liable under § 1983, the government entity or employee must have owed a duty to the plaintiff. See Vega v. Fox, 457 F. Supp. 2d 172 (S.D.N.Y. 2006); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001). The Government represents that the MTA does not set the policies and customs applicable to Ffrench or employ him and thus it owed no duty as a matter of law to him. The Government bases its claim that the MTA's responsibilities, and therefore duties, are limited to financing and planning on several cases: New York Civil Liberties Union v. New York City Trans. Auth., 675 F. Supp. 2d 411, 413 n.1 (S.D.N.Y. 2009); Puzhayeva v. City of New York, 58 N.Y.S.3d 92 (N.Y. App. Div. 2017); Delacruz v. Metropolitan Transp. Auth., 45 A.D.3d 482 (1st Dept. 2007). But these are inapposite. All involved dismissals of claims against the MTA on the grounds that the claims at issue were properly...