Eckardt v. City of White Plains

• Decision Date: 20 September 2011
• Citation: 930 N.Y.S.2d 22,2011 N.Y. Slip Op. 06548,87 A.D.3d 1049
• Parties: Dean ECKARDT, respondent,v.CITY OF WHITE PLAINS, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1049

930 N.Y.S.2d 22

2011 N.Y. Slip Op. 06548

Dean ECKARDT, respondent,

v.CITY OF WHITE PLAINS, et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 20, 2011.

Joseph A. Maria, P.C., White Plains, N.Y. (Frances Dapice Marinelli of counsel), for appellants.Laub Delaney LLP, White Plains, N.Y. (Montgomery Delaney of counsel), for respondent.MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In an action to recover damages for assault and battery, intentional infliction of emotional distress, negligent hiring and supervision, and for civil rights violations pursuant to 42 USC § 1983, the defendants City of White Plains, White Plains Police Department, and Police Officer Aragon # 64 appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered July 19, 2010, as, upon removing the White Plains Police Department as a defendant in the action, denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants City of White Plains and Police Officer Aragon # 64.

ORDERED that the appeal by the defendant White Plains Police Department is dismissed, without costs or disbursements, as it is not aggrieved by the order appealed from ( see CPLR 5511); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants City of White Plains, the White Plains Police Department, and Police Officer Aragon # 64 which were for summary judgment dismissing the second, third, and fourth causes of action insofar as asserted against the defendant City of White Plains and the third cause of action insofar as asserted against the defendant Police Officer Aragon # 64, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from by the defendants City of White Plains and Police Officer Aragon # 64, without costs or disbursements.

The plaintiff was arrested for disorderly conduct and resisting arrest. He alleged that, after he was brought to police headquarters, one of the arresting police officers unnecessarily used a taser on him several times while he was handcuffed. The officer testified at his deposition that he only used a taser on the plaintiff once because the plaintiff continually attempted to assault officers inside police headquarters. According to the officer, the plaintiff was not handcuffed at the time.

The plaintiff commenced this action against the defendant City of White Plains, the White Plains Police Department, and several police officers, including the defendant Police Officer Aragon # 64 (hereinafter Officer Aragon), asserting causes of action to recover damages for assault and battery (the first cause of action), intentional infliction of emotional distress (the second cause of action), negligent hiring and supervision (the third cause of action), and civil rights violations pursuant to 42 USC § 1983 (the fourth cause of action). The City, the White Plains Police Department, and Officer Aragon moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court, inter alia, denied those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the City and Officer Aragon (hereinafter together the appellants). We modify.

The appellants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the first cause of action insofar as asserted against them. We note that, unlike a claim pursuant to 42 USC § 1983, a municipality may be vicariously liable on a state law assault and battery claim for torts committed by a police officer under a theory of respondeat superior ( see Williams v. City of White Plains, 718 F.Supp.2d 374, 381; see also Merritt v. Village of Mamaroneck, 233 A.D.2d 303, 304, 649 N.Y.S.2d 475).

The appellants did, however, establish the City's entitlement to summary judgment dismissing the second cause of action insofar as asserted against it, as “ ‘[p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’ ” ( Ellison v. City of New Rochelle, 62 A.D.3d 830, 833, 879 N.Y.S.2d 200, quoting Liranzo v. New York City Health & Hosps. Corp., 300 A.D.2d 548, 548, 752 N.Y.S.2d 568). The appellants failed to make a prima facie showing of Officer Aragon's entitlement to summary judgment dismissing this cause of action insofar as asserted against him.

With regard to the third cause of action asserted under New York common law, generally, an employer will be held liable for torts committed by an employee who is acting within the scope of his or her employment under a theory of respondeat superior, and “no claim may proceed against the employer for negligent hiring, retention, supervision or training” ( Talavera v. Arbit, 18 A.D.3d 738, 738, 795 N.Y.S.2d 708; see Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27). Here, the actions complained of occurred during the arrest and detention of the plaintiff by several police officers, including Officer Aragon. It is beyond dispute that these actions were performed by the officers in the scope of their employment with the City. Accordingly, the plaintiff may not properly proceed with a cause of action to recover damages for negligent hiring and supervision, and the Supreme Court should have granted those branches of the motion which were for summary judgment dismissing the third cause of action insofar as asserted against the appellants. Contrary to the plaintiff's contention, the exception to this general rule ( see generally Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27) is inapplicable to the circumstances of this case based on the record before the Supreme Court.

As for the fourth cause of action, “42 USC § 1983 provides that ‘[e]very person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any...