Metwally v. Port Auth. of N.Y. & N.J.
| Decision Date | 10 January 2020 |
| Docket Number | Index No. 705076/2017 |
| Parties | OSAMA E. METWALLY, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, PORT AUTHORITY POLICE DEPARTMENT, DETECTIVE WILLIAM PRENTICE and CITY OF NEW YORK, Defendants. |
| Court | New York Supreme Court |
Short Form Order
Present: HONORABLE CHEREÉ A. BUGGS Justice
Motion Date: December 9, 2019
Respectfully Referred on: December 12, 2019
The following papers numbered 55-70, 91-96, 98, 101-102 submitted and considered on this motion by defendants THE PORT AUTHORITY POLICE DEPARTMENT and THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY(individually referred to as "PA"), (collectively referred to as "Defendants") seeking an Order pursuant to Civil Practice Law and Rules () 3211 and 3212 dismissing the plaintiff OSAMA E. METWALLY'S (hereinafter referred to as "Plaintiff") Complaint as against the Defendants with prejudice and for such other and further relief as this Court deems just and proper.
PapersNumbered Notice of Motion-Affirmation-Exhibits EF 55-70 Affirmation in Opposition-Affidavits-Exhibits. EF 91-96, 98 Reply Affirmation-Memorandum of Law EF 101-102
This is an action for damages, the facts are alleged as follows. On June 12, 2014, Plaintiff, a cab driver for Cario Limousine Service, picked up a pre-arranged round-trip passenger from New Jersey at 5:45 p.m with the intention of taking her to John F. Kennedy International Airport to pick up a friend and then drive both back to New Jersey. Plaintiff claims he arrived at Terminal 4 between 7:30 and 8:00 p.m and immediately saw the named defendant William Prentice ("Prentice") waving his hand seemingly to hail a ride. Plaintiff alleges he thought Prentice was blind because he was wearing big dark glasses despite the fact that it was getting dark. After his passenger disembarked he drove to the end of Terminal 4, ignoring Prentice's gesture and intending to break his fast with a meal. Plaintiff claims he exited the vehicle intending to dispose of the garbage that remained from his meal and upon returning to his vehicle he observed that Prentice was now standing by his car at the passenger side window. Plaintiff claims Prentice requested that Plaintiff take him to Manhattan for seventy-five dollars. Plaintiff claims he refused and told Prentice he already had a client. Instead, Plaintiff claims he gave Prentice a card with a number to contact his employer and arrange a pick-up. Plaintiff testified he intended either to call for Prentice because he believed he was blind or allow Prentice to call. Plaintiff claims he was arrested by Prentice after handing Prentice the card.
Prentice's Account
Prentice claims on June 12, 2014 he was stationed at Terminal 4 in John F. Kennedy Airport in his capacity as a detective for Port Authority Police Department. That Plaintiff rolled down his passenger side window and inquired as to whether Prentice needed a cab. Prentice alleges he told Plaintiff he needed a cab to Manhattan or the Sheraton Hotel and Plaintiff responded that it would cost $70 and told Prentice to meet him further down the road. Prentice alleges the conversation occurred again and he ultimately perched himself behind Plaintiff's trunk. Then, Prentice alleges Plaintiff took Prentice's suitcase and placed it in the trunk of his car. This allegedly led Prentice to arrest Plaintiff for solicitation. Prentice claims he was not wearing glasses that day and that there was no passenger in Plaintiff's car at the time but that Plaintiff did exclaim "I thought you were blind" while he was under arrest.
Testimony of Senada Berberistanin
Senada claims on June 12, 2014 she arranged with Plaintiff to take her from her home in New Jersey to John F. Kennedy Airport to pick up a friend, then back to her home in New Jersey for $250. Senada claims that she used Plaintiff several times in the past for cab services along with her family and friends. That on June 12, 2014 Plaintiff picked her up a little after 6:00 p.m. from her home and took her to Terminal 4 where she went to go get her friend. Upon returning with her friend to meet Plaintiff he was not there. She found this unlike his behavior in the past.
Motion To Dismiss
Now, Defendants seek an Order pursuant to CPLR 3211(a)(2) dismissing all of Plaintiff's Causes of Action as alleged against named defendant Port Authority Police Department.
CPLR 3211 (a)(2) states as follows:
Defendants allege as an agency of the City of New York the Port Authority Police Department is not an entity in its own right but merely an administrative arm of the municipality, therefore, it can neither sue nor be sued. Defendants cite Charles Edward Davis v Lynbrook Police Department (224 F. Supp.2d 463 [EDNY 2002]) where plaintiff alleged he was harassed by a police officer and brought a civil rights action. Lynbrook Police Department moved to dismiss. The court held "Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued" (id at 477).
Plaintiff has not pled facts sufficient to prove that the Port Authority Police Department is more that a mere "administrative arm" of the City of New York (id).
Court Lacks Personal Jurisdiction over Port Authority
The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. The provisions of this section shall not apply to claims arising out of provisions of any workmen's compensation law of either state. (Mckinney's Cons Laws of NY § 7107 [emphasis added])
PA seeks to dismiss Plaintiff's First, Third, Fourth, Fifth, Seventeenth and Eighteenth Causes of Action pursuant to CPLR 3211 and/or because they are untimely.
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the claim must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" (Sawitsky v State, 146 AD3d 914 [2d Dept 2017]; see also Leon v Martinez, 84 NY2d 83 [1994] ).
First Cause of Action- New York State Tort Law False Arrest and False Imprisonment
A cause of action for false arrest and imprisonment under New York law arises "at the time of plaintiff's actual physical release from confinement" (Thomas D. Allee v City of New York, 43 AD2d 899 [1st Dept 1973]). Here, Plaintiff was released from confinement on June 15, 2014therefore, Plaintiff's first cause of action began to accrue on the same date. Plaintiff commenced this action on May 17, 2016 by filing the Summons and Complaint.
Third Cause of Action- Intentional Infliction of Emotional Distress
Plaintiff cannot maintain this cause of action against a government entity (See Edward G. Lauer v City of New York et al., 240 AD2d 543, 544 [2d Dept 1997]).
Fourth Cause of Action- Negligent Infliction of Emotional Distress
Plaintiff claims he was acquitted in this matter on June 19, 2015 and that his negligent infliction of emotional distress claim overlaps with his malicious prosecution claim, thereby making this claim timely.
Plaintiff was charged with violating Vehicle and Traffic Law § 1220-b.
Vehicle and Traffic Law § 1220-b states:
Fifth Cause of Action- New York State Law Negligence
Plaintiff claims PA was generally negligent and negligent in its hiring, training and retention of Prentice. PA asserts Plaintiff is seeking to recover under principles of negligence for injuries allegedly resulting from his false arrest and false imprisonment thereby requiring dismissal of those claims.
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