Raffaele v. City of N.Y.

• Decision Date: 30 October 2015
• Docket Number: No. 13–CV–4607 (KAM)(VVP).,13–CV–4607 (KAM)(VVP).
• Citation: 144 F.Supp.3d 365
• Parties: Thomas D. RAFFAELE, Plaintiff, v. The CITY OF NEW YORK; Raymond W. Kelly, individually and in his official capacity as Police Commissioner for the City of New York; Richard A. Brown, in his official capacity as the Queens District Attorney; Daniel O'Leary, individually and in his official capacity as an Assistant District Attorney for Queens County ; Peter A. Crusco, individually and in his official capacity as an Assistant District Attorney of Queens County; Luis Samot, individually and in his official capacity as a New York City Police Officer; Russell Lawry, individually and in his official capacity as a New York City Police Officer; Jon–Kristian Rzonca, individually and in his official capacity as a New York City Police Officer; Moses Lee, individually and in his official capacity as a New York City Police Officer; Caron Addesso, individually and in her official capacity as a New York City Police Officer; David Taormina, individually and in his official capacity as a New York City Police Officer; Anibal Martinez, individually and in his official capacity as a New York City Police Officer; and Nicholas Gigante, individually and in his official capacity as a New York City Police Officer, Defendants.
• Court: U.S. District Court — Eastern District of New York

144 F.Supp.3d 365

Thomas D. RAFFAELE, Plaintiff,

v.The CITY OF NEW YORK; Raymond W. Kelly, individually and in his official capacity as Police Commissioner for the City of New York; Richard A. Brown, in his official capacity as the Queens District Attorney; Daniel O'Leary, individually and in his official capacity as an Assistant District Attorney for Queens County ; Peter A. Crusco, individually and in his official capacity as an Assistant District Attorney of Queens County; Luis Samot, individually and in his official capacity as a New York City Police Officer; Russell Lawry, individually and in his official capacity as a New York City Police Officer; Jon–Kristian Rzonca, individually and in his official capacity as a New York City Police Officer; Moses Lee, individually and in his official capacity as a New York City Police Officer; Caron Addesso, individually and in her official capacity as a New York City Police Officer; David Taormina, individually and in his official capacity as a New York City Police Officer; Anibal Martinez, individually and in his official capacity as a New York City Police Officer; and Nicholas Gigante, individually and in his official capacity as a New York City Police Officer, Defendants.

No. 13–CV–4607 (KAM)(VVP).

United States District Court, E.D. New York.

Signed Oct. 30, 2015.

Barak Pedro Cardenas, Reza M. Islam, Cardenas Islam & Associates, PLLC, Jamaica, NY, for Plaintiff.

Virginia Jackson Nimick, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MATSUMOTO

, District Judge:

Plaintiff Thomas D. Raffaele (“plaintiff” or “Judge Raffaele”) brings this lawsuit pursuant to 42 U.S.C. §§ 1983

, 1985, and 1986 and New York state law against the City of New York (the “City”); former New York City Police Commissioner Raymond W. Kelly; Queens District Attorney Richard A. Brown; Assistant District Attorneys Daniel O'Leary and Peter A. Crusco; and New York City Police Department (“NYPD”) Officers and Sergeants Luis Samot, Russell Lawry, Jon–Kristian Rzonca, Moses Lee, Caron Addesso, David Taormina, Anibal Martinez, and Nicholas Gigante (collectively, “defendants”) in connection with police activity at the intersection of 37th Road and 74th Street in Jackson Heights, New York in the early morning hours on June 1, 2012. Presently before the court is a motion by defendants Raymond Kelly (“Commissioner Kelly”), District Attorney Richard Brown (“DA Brown”), Assistant District Attorneys Daniel O'Leary (“ADA O'Leary”) and Peter Crusco (“ADA Crusco”), and the City (together, the “moving defendants”) to dismiss plaintiff's claims for (1) conspiracy pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 ; (2) denial of access to the court; (3) supervisory liability; (4) municipal liability; (5) defamation; (6) prima facie tort and (7) all other claims against DA Brown, ADA O'Leary, and ADA Crusco (the “District Attorney defendants”). For the reasons set forth below, the moving defendants' motion is granted in its entirety.

BACKGROUND

The following facts, even where alleged “upon information and belief,” are taken from plaintiff's amended complaint and are assumed to be true solely for the purpose of the court's evaluation of the motion to dismiss. (Am. Compl., ECF No. 45, dated 1/28/14.) On or around 12:00 a.m. on June 1, 2012, Judge Raffaele, a justice of the Supreme Court of the State of New York, County of Queens, and his associate Muhammad Rashid (“Mr. Rashid”) were traveling east on 37th Road toward 74th Street in Jackson Heights, New York to return car keys Mr. Rashid had previously borrowed. (Id. ¶¶ 6, 24–25.) As Judge Raffaele and Mr. Rashid arrived at the intersection of 37th Road and 74th Street, they noticed a crowd gathering and observed two officers of the NPYD who were later identified as Officer Luis Samot (“Officer Samot”) and Officer Russell Lawry (“Officer Lawry”). (Id. ¶ 28.)

Judge Raffaele observed that Officer Samot was restraining Charles Menninger (“Mr. Menninger”), a homeless individual who is “commonly known in the neighborhood.” (Id. ¶ 29.) Judge Raffaele also observed Officer Lawry standing on 74th Street, kicking a metal pipe toward Mr. Menninger. (Id. ¶ 30.) Judge Raffaele also observed Officer Samot kneeling with force on Mr. Menninger's left side while Mr. Menninger was lying face down, shirtless with his hands handcuffed behind his back. (Id. ¶¶ 31–32.) Judge Raffaele allegedly observed Officer Samot repeatedly stand up and drive his right knee into Mr. Menninger's back with “brutal force”. (Id. ¶¶ 32–33.) Mr. Menninger was not attempting to stand up, resist, or flee and was allegedly saying “I beg you please stop; I beg you please stop.” (Id. ¶¶ 34–35.)

Judge Raffaele observed that a crowd was growing around the NYPD officers and that some members of the crowd were asking the police officers to stop their actions toward Mr. Menninger. (Id. ¶¶ 38–39.) Judge Raffaele overheard a female observer tell Officer Samot and Officer Lawry: “I'm a nurse. You are injuring him. You have to stop.” (Id. ¶ 40.) Judge Raffaele observed that the crowd was growing in size and was becoming increasingly aggressive toward Officers Samot and Lawry, and he walked away from the scene and called the 911 emergency line in an effort to ensure the safety of Officers Samot and Lawry. (Id. ¶ 44.) Judge Raffaele then allegedly walked back to the sidewalk corner of 74th Street and 37th Road and attempted to calm down the crowd and move them away from Mr. Menninger and Officers Samot and Lawry. (Id. ¶ 46.)

Shortly thereafter, additional NYPD officers, including Sergeant Rzonca, Sergeant Taormina, Sergeant Addesso, Officer Martinez, and Officer Lee arrived at the scene. (Id. ¶ 47.) The additional NYPD officers set up a human safety perimeter around Mr. Menninger and Officers Samot and Lawry in the middle of 74th Street and began managing the large crowd. (Id. ¶ 48.) Judge Raffaele allegedly did not enter the safety perimeter at any time and stood approximately ten to fifteen feet away from the safety perimeter. (Id. ¶¶ 49, 61.)

Judge Raffaele allegedly observed Officer Samot yell obscenities at the crowd and “violently shove and attack” members of the crowd. (Id. ¶¶ 56–57, 62–63.) Officer Samot allegedly “charged up” to Judge Raffaele, who was standing approximately fifteen feet away from the NYPD officers and shoved Judge Raffaele with his right arm without any warning or explanation. (Id. ¶¶ 64–65.) Officer Samot also struck Judge Raffaele in the neck using a “karate chop-like” move with his left hand immediately thereafter. (Id. ¶ 66.) Officer Samot's actions against Judge Raffaele were captured on video and at least four or five NYPD officers observed the incident, including Sergeant Rzonca. (Id. ¶¶ 67, 84.) Judge Raffaele was allegedly overcome with “blinding pain” and temporarily lost his ability to speak and breathe properly.

(Id. ¶ 70.) Other NYPD officers immediately moved Officer Samot away from Judge Raffaele. (Id. ¶ 72.)

After Judge Raffaele regained the ability to speak, he informed Officer Lee that he wanted to file an official report or complaint against Officer Samot. (Id. ¶ 73.) Officer Lee allegedly responded that he “can't do that”, and Judge Raffaele immediately demanded to speak to the commanding officer. (Id. ¶ 74.) Shortly thereafter, Sergeant Rzonca approached Judge Raffaele and identified himself. (Id. ¶ 75.) Judge Raffaele then identified himself as a New York State Supreme Court Judge and informed Sergeant Rzonca of the attack by Officer Samot. (Id. ¶ 76.) While speaking with Sergeant Rzonca, Judge Raffaele displayed signs of extreme pain and discomfort in his neck area. (Id. ¶ 77.) Judge Raffaele demanded that Sergeant Rzonca take his statement for a formal complaint against Officer Samot. (Id. ¶ 78.) Sergeant Rzonca did not take Judge Raffaele's statement but promised to investigate and spoke with a group of NYPD officers that included Officer Samot and other officers who had witnessed the attack against Judge Raffaele. (Id. ¶ 79.) After speaking with the officers, Sergeant Rzonca returned to Judge Raffaele and stated: “I don't know what you are talking about.” (Id. ¶ 80.) Plaintiff alleges that the group of NYPD officers with whom Sergeant Rzonca spoke reported that nothing had happened involving Judge Raffaele. (Id. ¶ 81.) Sergeant Rzonca did not offer Judge Raffaele any alternative recourse or take Judge Raffaele's statement. (Id. ¶ 82.) Judge Raffaele alleges that NYPD officers, including Officer Lee and Sergeant Rzonca, intentionally concealed Officer Samot's identity from Judge Raffaele in an attempt to protect Officer Samot from discipline. (Id. ¶ 93.)

Thereafter, Judge Raffaele and Mr. Rashid left the scene. (Id. ¶ 87.) Judge Raffaele continued to experience neck pain and labored breathing (Id. ¶¶ 91, 95.) At about 1:00 a.m. on June 1, 2012, Judge Raffaele went to the Emergency Room at Elmhurst Hospital Center, where he was examined for internal injuries, including a crushed larynx. (Id. ¶ 99.)

Judge Raffaele advised the medical staff that his injuries resulted from an attack, and the hospital staff summoned two NYPD officers from the 110th Precinct to take Judge Raffaele's statement. (Id. ¶ 100–01.) The NYPD officers belonging to the 110th Precinct met with Judge Raffaele and began to take his statement against Officer Samot. (Id. ¶ 102.) A few minutes after they started speaking with Judge Raffaele, the 110th Precinct officers “were called away” out of the sight of Judge Raffaele. (Id. ¶ 103.) Mr. Rashid observed Officer Lee and Sergeant Rzonca speaking with the NYPD officers from the 110th Precinct on two separate occasions in the Emergency Room. (Id. ¶ 104.) Thereafter, the NYPD officers from the 110th Precinct returned to Judge Raffaele and informed him that the incident occurred beyond the 110th Precinct's geographic boundaries, refused to take Judge Raffaele's statement and advised him to file a complaint at his local precinct. (Id. ¶¶ 105–06.) Jud...