Ifudu v. City of N.Y.

• Decision Date: 22 September 2018
• Docket Number: 16-CV-2957 (MKB)
• Parties: VERA IFUDU, Plaintiff, v. CITY OF NEW YORK, POLICE OFFICERS KEVIN PUGLIESE, CHASIDY GENAO, ZHAN REN, and SGT NATHAN MOLE, Defendants.
• Court: U.S. District Court — Eastern District of New York

VERA IFUDU, Plaintiff, v. CITY OF NEW YORK, POLICE OFFICERS KEVIN PUGLIESE,CHASIDY GENAO, ZHAN REN, and SGT NATHAN MOLE, Defendants.

16-CV-2957 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 22, 2018

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Vera Ifudu commenced the above-captioned action on June 8, 2016, against Defendants City of New York (the "City") and Police Officers John Doe 1-4. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on January 5, 2017, substituting Defendants Police Officers Kevin Pugliese, Chasidy Genao, Zhan Ren, and Sergeant Nathan Mole for Police Officers John Doe 1-4. (Am. Compl., Docket Entry No. 13.) Plaintiff's claims arise from her arrest on July 31, 2015. (Id.) Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for false arrest, use of excessive force, and failure to intervene. (Id. ¶¶ 35-43.) Plaintiff also asserts state law claims for assault and battery, negligent and intentional infliction of emotional distress, and invasion of privacy.¹ (Id. ¶¶ 44-64.) Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Defs. Mot. for Summ. J. ("Defs. Mot."), Docket Entry No. 36; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 39.) For thereasons discussed below, the Court grants the motion in part and denies it in part.

I. Background

The following facts are undisputed unless otherwise noted. Plaintiff rented the basement of her property, located at 145-10 106th Avenue, Jamaica, New York (the "Property"), to Evans Otoba beginning in September of 2014.² (Defs. Reply to Pl. Counter-Statement of Material Facts Pursuant to Local Rule 56.1 ("Defs. Reply to Pl. 56.1") ¶ 3, Docket Entry No. 41; Dep. of Vera Ifudu ("Pl. Dep.") 93:17, annexed to Decl. of Valerie Smith ("Smith Decl.") as Ex. C, Docket Entry No. 38-3.) On July 29, 2015, Otoba informed Plaintiff that someone had burglarized the basement damaging the door to the basement. (Pl. Dep. 42:22-25, 87:19-25, 111:10.) That same day, Plaintiff instructed Otoba to evacuate the basement with his belongings. (Defs. Reply to Pl. 56.1 ¶ 6.)

On July 30, 2015, Otoba called the police multiple times to report Plaintiff's attempts to remove him from the basement. (Id. ¶ 9.) The police informed Otoba that Plaintiff could not force him to move if he did not want to move out of the basement. (Id. ¶ 30.) The following day, Plaintiff and Otoba continued to argue over the use of the basement. (Id. ¶¶ 18-19.) At approximately 9:40 PM, Officers Genao and Ren responded to reports of an illegal eviction at the Property. (Id. ¶ 21.) Plaintiff informed the officers that "it was not working out with Mr. Otoba and that he need[ed] to leave the basement." (Id. ¶ 23.) The officers left after informingPlaintiff that she could not evict Otoba without first going to housing court. (Id. ¶¶ 26-29.) The situation was not resolved to Plaintiff's satisfaction because the police did not order Otoba to vacate the basement. (Id. ¶ 26.)

At approximately 11 PM, emergency medical technicians ("EMT") arrived the Property in response to Plaintiff's 911 call requesting an ambulance because "she was feeling 'put upon,' her heart was palpitating and she had not taken her blood pressure medication in [forty-eight] hours." (Id. ¶¶ 30-31, 34.) Shortly thereafter, Otoba again called 911, complaining that Plaintiff was harassing him and would not leave the Property. (Id. ¶ 35.) At approximately 11:30 PM, Officers Mole and Pugliese arrived at the Property. (Id. ¶ 36.) Soon after Mole and Pugliese arrived, Genao and Ren returned to the Property in response to a report of an illegal eviction. (Id. ¶ 41.) Otoba showed the officers his lease for the basement confirming that he was the tenant.³ (Id. ¶ 43.) During this period, Plaintiff "did not understand what was going on" and was "super confused." (Id. ¶¶ 50-52, 54-56.) Despite repeated requests from EMT and the officers, Plaintiff refused to go to the hospital. (Id. ¶ 40).

At one point after all four Defendants arrived, Otoba went into the basement, and Plaintiff ran after him. (Id. ¶ 62.) Otoba tried to close the door to keep Plaintiff from entering and Plaintiff physically blocked the doorframe with her body. (Id. ¶ 64.) The resulting struggle over the door caused it to crack and break. (Id. ¶ 65.) Plaintiff concedes that the situation between her and Otoba was "volatile." (Id. ¶ 66.) Police officers followed Plaintiff into the room, threw Plaintiff to the ground, and placed her in handcuffs. (Id. ¶ 72; Pl. Dep. 140:16-21.)While Plaintiff was on the ground, Mole put his boot on the nape of her neck "for a split second." (Defs. Reply to Pl. 56.1 ¶ 71.)

The officers picked Plaintiff up off the ground and carried her outside while she yelled "so loudly that she lost her voice." (Id. ¶¶ 73-74.) Once outside, the officers placed Plaintiff back onto the ground. (Id. ¶ 78.) At this time, Plaintiff still had her bag, which was hanging across her body. (Id. ¶ 77.) Plaintiff alleges that an officer removed the handcuffs and both Mole and Pugliese attempted to take the bag from Plaintiff. (Id. ¶¶ 79-80; Pl. Suppl. Decl. ¶ 8, Docket Entry No. 43-3.)⁴ Plaintiff fought the officers to keep her bag by holding it close to her body. (Defs. Reply to Pl. 56.1 ¶ 81.) During the struggle, a ring on the bag cut Plaintiff's finger, causing her to bleed. (Id. ¶¶ 82, 84.)

Defendants re-handcuffed Plaintiff and escorted her by ambulance to Jamaica Hospital. (Id. ¶¶ 86, 93.) At the hospital, Plaintiff received six stitches for the cut to her finger. (Id. ¶ 99; Medical Record 3, annexed as Ex. J to Smith Decl.) Plaintiff did not suffer any nerve damage to her injured finger and reported no problems using her finger or hand after the stitches were removed. (Id. ¶¶ 100, 103.) Other than the cut to her finger, Plaintiff suffered only minor pain or bruising as a result of her encounter with the NYPD. (Id. ¶ 85.) Plaintiff alleges that the NYPD refused to return her bag to her, despite repeated requests. (Pl. Dep. 153.)

II. Discussion

a. Standard of review

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movantis entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230 (2d Cir. 2015). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

b. Plaintiff's supplemental affidavit and rule 56.1 counter-statement of undisputed facts

Defendants argue that the Court should disregard Plaintiff's supplemental affidavit, submitted with her opposition to Defendants' motion, because it does not appear to be based on personal knowledge and contradicts Plaintiff's prior testimony. (See Defs. Reply Mem. in Supp. of Defs. Mot. ("Defs. Reply") 2-3, Docket Entry No. 40.) Defendants further request that the Court disregard certain responses in Plaintiff's Counter-Statement of Material Facts Pursuant to Local Rule 56.1, which rely on Plaintiff's supplemental affidavit or which are otherwise nonresponsive, narrative, or unsupported by the record. (Defs. Reply 1-2; Defs. Reply to Pl. 56.1.)

i. Plaintiff's supplemental affidavit

"[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgement motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Crawford v. Franklin Credit Mgmt., 758 F.3d 473, 482 (2d Cir. 2014) (quoting Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996)). While a court may not ordinarily make credibility determinations at the motion to dismiss stage, a court will not consider "sham evidence" submitted in order to create a genuine issue of material fact in opposition to a motion for summary judgment. Simcoe v. Gray, 577 F. App'x 38, 40-41 (2d Cir. 2014); In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 195 (2d Cir. 2013). However, a court may disregard such "sham evidence" only "in the rare circumstance where the plaintiff relies almost exclusively on [her] own testimony, much of which is contradictory and incomplete," such that "it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff's account." Simcoe, 577 F. App'x at 40-41 (citing Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)). Courts should not "engage in searching, skeptical analyses of parties' testimony in opposition to summary judgment." Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (citing Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011)); see also Matheson v. Kitchen, 515 F. App'x 21, 24 (2d Cir. 2013) (holding that the district court erred when it excluded testimony because "[w]hile some of the inconsistencies identified by the court below might well lead a jury to reject the...