Grytsyk v. Morales

Decision Date22 March 2021
Docket Number19-CV-3470 (JMF)
Citation527 F.Supp.3d 639
Parties Petro GRYTSYK, Plaintiff, v. P.O. Anthony MORALES, Shield No. 5056, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Alan D. Levine, Law Offices of Alan D. Levine, Kew Gardens, NY, for Plaintiff.

Adria Jasmine Bonillas, Lucienne Pierre, Stephen Matthew Suhovsk, New York City Law Department, New York, NY, for Defendants.


JESSE M. FURMAN, United States District Judge:

Plaintiff Petro Grytsyk, an artist who has long sold his work on a Manhattan sidewalk, brings claims pursuant to 42 U.S.C. § 1983 against the City of New York (the "City") and nineteen officers (the "Individual Defendants") from the New York City Police Department ("NYPD"), arising from an arrest in April 2016 and from nearly thirty summonses he received in the months and years thereafter relating to his street vending.1 Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all of Grytsyk's claims. ECF No. 41. For the reasons that follow, the motion is granted in part and denied in part.


The following relevant facts, drawn from the operative amended complaint (the "Complaint"), see ECF No. 35 ("Compl."), are taken as true and construed in the light most favorable to Grytsyk. See, e.g. , Kleinman v. Elan Corp. , 706 F.3d 145, 152 (2d Cir. 2013).

Since 2010, Grytsyk has sold artwork of his creation on the sidewalk in front of 701 Seventh Avenue, between West 47th and West 48th Streets in New York City. Compl. ¶ 30. Grytsyk maintains — and, at least for purposes of this motion, Defendants do not dispute — that, under the applicable vending regulations, he is entitled to "display and offer his art for sale" at that location "at any time except at those times when both food and general vendors are not permitted to sell their wares." Id. ¶ 34; see ECF No. 43 ("Defs.’ Mem."), at 2; ECF No. 54 ("Defs.’ Reply"), at 2. On April 18, 2016, Grytsyk and his wife were both selling artwork in front of 701 Seventh Avenue when Defendant Officer Morales issued Grytsyk's wife a summons returnable at the Criminal Court of the City of New York. Compl. ¶ 40. Grytsyk "pointed out to" Morales "that his wife should not have been served a Criminal Court summons but that, if she were to be issued any summons at all, it should be returnable" to the New York City Environmental Control Board ("ECB"). Id. ¶ 41.

"In response," Officer Morales summoned Lieutenant Khan, who "proceeded to order [Grytsyk] to close down his display." Id. ¶¶ 42-43. Grytsyk "protested" Khan's order, "stating that a decision as to whether or not his display should be closed was one that had to be made to a judge." Id. ¶ 44. "In response," Lieutenant Khan directed Officer Morales to arrest Grytsyk; Officer Morales did so and charged Grytsyk with both obstruction of governmental administration ("OGA") in the second degree and disorderly conduct. Id. ¶¶ 45-46. In conducting the arrest, Officer Morales "handcuff[ed Grytsyk] so tightly as to aggravate a pre-existing medical condition of [his] right hand, causing him an extremely painful injury" for which he later sought medical attention. Id. ¶ 47. Lieutenant Khan also directed Officer Morales and other NYPD officers to seize Grytsyk's art and displays, which the NYPD then held at the Midtown North Precinct for eleven days. Id. ¶¶ 48-49.

At the stationhouse following the arrest, Officer Morales issued three summonses to Grytsyk. Id. ¶ 52. Two alleged violations of New York City Administrative Code § 20-465, which imposes certain time, place, and manner restrictions on sidewalk vendors; and one alleged a violation of 6 R.C.N.Y. § 2-304(a), which prohibits general vendors from conducting business in a roadway where and/or when stopping, standing, or parking is prohibited or restricted. Id. ¶¶ 52-54; see N.Y.C. Admin. Code § 20-452(b) (defining a "general vendor" in this context as "[a] person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services ... in a public space," with certain exceptions including "food vendors"); id. § 17-306(c) (defining a "food vendor" as "[a] person who hawks, peddles, sells or offers food for sale at retail in any public space"). In a box on the summonses labeled "Date of Offense," Officer Morales handwrote "4/18/16"; and in a box labeled "Time," he handwrote 1:15 p.m. ECF No. 42-1, at 2-3. An ECB hearing officer dismissed all three of these summonses eight days later, on April 26, 2016. Compl. ¶ 55.

Grytsyk contends that the April 18, 2016 arrest "was a watershed moment" marking the launch of a "campaign of harassment against him that did not pause until 2018." Id. ¶ 56. More specifically, he alleges that, between May 3, 2016 and October 14, 2018, NYPD officers issued him a total of twenty-five summonses relating to his sales of artwork. Id. ¶¶ 57, 62, 64-65, 70.

The first came on May 3, 2016, when Sergeant Bergen physically assaulted, insulted, and threatened Grytsyk, and then ordered Officer Tansey to issue him a summons. Id. ¶ 57. The summons alleged a violation of New York City Administrative Code § 20-465.1 and was dismissed at a hearing before the ECB on June 1, 2016 (after which the ECB issued a written opinion holding that a vendor of artwork could conduct his business at any time except when both food and general vending were prohibited at the location in front of 701 Seventh Avenue). Id. ¶¶ 57-59. Following the ECB's decision, Grytsyk told Sergeant Bergen that the summonses the NYPD was issuing him were improper and were being dismissed, to which Sergeant Bergen replied that "he could issue summonses to [Grytsyk] every day and that he did not care what a judge had to say about it." Id. ¶¶ 60-61.

Next, on June 18, 2016, Defendant Officer Williams issued Grytsyk a Criminal Court summons alleging another violation of Administrative Code § 20-465.1; this summons was also dismissed, on September 7, 2016, when Officer Williams failed to appear in court. Id. ¶¶ 62-63. And on February 11, 2017, Captain O'Hara and Sergeant Bergen ordered Officer Scialabba to issue Grytsyk a summons, which he did. This summons was subsequently dismissed as well — as was another summons issued (by whom the Complaint does not say) to Grytsyk on July 21, 2017. Id. ¶¶ 64-65. In the meantime, on December 5, 2016, the criminal charges that had been filed against Grytsyk stemming from the April 18, 2016 arrest were dismissed and sealed on motion by the New York County District Attorney. Id. ¶ 50. The Certificate of Disposition (of which the Court can take judicial notice, see McBeth v. Porges , 171 F. Supp. 3d 216, 221 (S.D.N.Y. 2016) ) indicates that the charges were dismissed pursuant to "speedy trial provisions." ECF No. 42-2 (capitalization altered).

Grytsyk alleges that, following the dismissal of the July 21, 2017 summons, "there was a hiatus in the pattern of harassment that [he] had been subjected to." Compl. ¶¶ 66-67. It came to an end in the summer of 2018. Between June 1, 2018 and October 14, 2018, in a "campaign of harassment" that "exceeded anything that had gone before," Grytsyk was served with twenty-one additional summonses for violations of the New York City Administrative Code by some combination of the following Defendants: Sergeant McGurran, Officer Lachmenar, Sergeant Murphy, Lieutenant Khan, Officer DiCandia, Sergeant Schack, Officer Desalto, Officer Mohandes, Officer Espinal, Sergeant Forlenza, Officer Rahman, and Officer Gao. Id. ¶¶ 68-70. Each of these summonses was returnable at the New York City Office of Administrative Trials and Hearings ("OATH"); each was eventually dismissed. Id. ¶ 71.

Officer Lachmenar issued one of these twenty-one summonses, for a violation of Section 20-465.1 of the Administrative Code, to Grytsyk on August 14, 2018. Id. ¶ 70. That same day, Lieutenant Khan, Officer Lachmenar, Officer Mohandes, and Sergeant Murphy also "seized" Grytsyk's display of artwork, "left it out in the rain so as to permanently damage it, and confiscated it." Id. ¶ 74. Four days later, Grytsyk unsuccessfully attempted to retrieve the confiscated artwork, but Sergeant Murphy told him that the Times Square District Management Association, Inc. ("Times Square Alliance") — a nonprofit organization, the board of which is composed of Times Square-area business owners, a neighborhood resident, labor union representatives, representatives from a non-profit organization, and various government officials — and "at least two Times Square area retail establishments did not want [Grytsyk] vending his artwork on the sidewalk." Id. ¶¶ 79, 95, 98. On August 24, 2018, Grytsyk received "written authorization" from the City "that entitled him to retrieve" the artwork. Id. ¶ 75. But Grytsyk has not retrieved the confiscated artwork to date, as "he refuses to execute a release for it until he is permitted to assess the damage that was done to it." Id. ¶¶ 76-77.

Following the October 14, 2018 summons, unnamed NYPD officers issued to Grytsyk another three summonses, all returnable at OATH; but these were never filed with OATH by the issuing police officers. Id. ¶ 72. Finally, after another hiatus, Officer Henry issued Grytsyk another summons on January 8, 2020 for violating Section 20-465.1 ; this summons was also dismissed at a January 27, 2020 hearing before OATH. Id. ¶ 80.

Grytsyk filed this lawsuit on April 18, 2019, initially naming the City and all Individual Defendants other than Officer Henry. See ECF No. 1. Grytsyk filed the operative, amended Complaint on April 7, 2020, adding Officer Henry and Times Square Alliance as Defendants. Compl. The City and the eighteen initially named Individual Defendants moved to dismiss the Complaint on May 5, 2020. ECF No. 41. Earlier today, Henry joined their motion. ECF No. 80. Times Square Alliance moved to dismiss the Complaint on February 5, 2021, see ECF No. 71, but Grytsyk subsequently voluntarily dismissed his claims against Times...

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