Rizk v. City of N.Y.

Decision Date22 May 2020
Docket Number14-CV-6434 (RRM) (RER)
Citation462 F.Supp.3d 203
Parties Jacqueline RIZK and Samir Gonsalves, Plaintiffs, v. CITY OF NEW YORK, New York City Police Department, Police Officer Firadaus Mehirdel (Tax Reg. # 950309), Police Officer Danny Lee (Tax Reg. # 950736); Sergeant Joel Rosenthal (Tax Reg. # 946197), Lieutenant George Howley (Tax Reg. # 904177), and Police Officer John Does 1–10, Defendants.
CourtU.S. District Court — Eastern District of New York

Victor A. Carr, Mineola, NY, Patrick Kenaris Foster, Renfroe Driscoll & Foster, LLP, Forest Hills, NY, for Plaintiffs.

Qiana Charmaine Smith-Williams, Melanie Mary Speight, New York City Law Department, New York, NY, for Defendants.


ROSLYNN R. MAUSKOPF, Chief United States District Judge:

Plaintiffs Jacqueline Rizk and Samir Gonsalves bring this civil rights action against the City of New York (the "City"), the New York City Police Department (the "NYPD"), and several NYPD employees – Lieutenant George Howley, Sergeant Joel Rosenthal, and Police Officers Firadaus Mehirdel, Danny Lee, and John Does 1–10 (collectively, the "Individual Defendants"), principally alleging that their constitutional rights were violated on August 3, 2013, incident in which they were detained and/or arrested. Defendants now move for summary judgment with respect all four federal and all six state-law causes of action. For the reasons set forth below, defendants’ motion is granted in part and denied in part.


Unless otherwise indicated, the following facts are undisputed. In the early morning hours of Saturday, August 3, 2013, plaintiffs were at Static, a bar/lounge located on Steinway Street in Astoria, Queens. At the time, plaintiff Rizk was employed as an Assistant District Attorney in the Queens County District Attorney's Office, where she had worked for roughly seven years. (Plaintiffs’ Statement of Disputed Facts pursuant to Local Civil Rule 56.1 ("Pl. 56.1") (Doc. No. 86) ¶ 2; Defendants’ Statement pursuant to Local Civil Rule 56.1 ("Def. 56.1") (Doc. No. 82) ¶ 2.) Plaintiff Gonsalves had been employed by the NYPD for ten years and was a detective assigned to Transit District 20. (Pl. 56.1 ¶ 3; Def. 56.1 ¶ 3.)

At approximately 4:30 a.m., after "hanging out" at the bar for several hours, plaintiffs left Static with a mutual friend of theirs. (Pl. 56.1 ¶ 1; Def. 56.1 ¶ 1.) The three walked to Gonsalves’ parked car, then had a disagreement about what to do next. (Pl. 56.1 ¶ 6; Def. 56.1 ¶ 6.) Rizk wanted to go home, while Gonsalves wanted to go out for breakfast. (Id. ) There was some physical contact between plaintiffs in the course of this disagreement, (Pl. 56.1 ¶¶ 12–13; Def. 56.1 ¶¶ 12–13), although both plaintiffs deny that they were "fighting." (Pl. 56.1 ¶¶ 15, 17.)

At about this time, Officer Lee was driving a marked patrol car southbound on Steinway Street with his partner, Officer Mehirdel, in the passenger seat. (Deposition of Danny Lee ("Lee Dep.") (Doc. No. 84-5) at 11; Deposition of Firadaus Mehirdel ("Mehirdel Dep.") (Doc. No. 84-4) at 11.) Near the intersection of 30th Avenue, they were stopped by a man driving a black SUV northbound on Steinway Street. (Lee Dep. at 41–42; Mehirdel Dep. at 11.) Through the open window of his vehicle, the man reported seeing a couple fighting farther south on Steinway Street. (Lee Dep. at 43, 47; Mehirdel Dep. at 11–12.)

As the officers continued driving south, they encountered pedestrians who corroborated the information they had received from the driver of the SUV. According to Lee, pedestrians reported seeing a man and woman fighting. (Lee Dep. at 111, 113.) Mehirdel did not hear what the pedestrians said but saw them pointing down the street. (Mehirdel Dep. at 70–71.)

Seconds thereafter, the officers saw a couple standing in the street on the northbound side. (Lee Dep. at 47; Mehirdel Dep. at 12–13.) Mehirdel first saw them from a distance of 50 feet, as they were standing on the driver's side of a gray sedan, about 1 foot apart, and facing each other. (Mehirdel Dep. at 34–36.) The man – later identified as Gonsalves – was initially holding the woman – later identified as Rizk – by the hand, but she then "pulled away from him in a forceful way," as if "she didn't want to be touched." (Mehirdel Dep. at 13.) Lee recalled seeing the man "grabbing" the woman and heard them yelling at each other. (Lee Dep. at 49–51, 55.)

Although Lee claimed that the yelling was very loud – 10 on a 10-point scale (Lee Dep. at 55) – Mehirdel did not even hear it until after Lee executed a U-turn, so as to position the patrol car behind the gray sedan. (Mehirdel Dep. at 30.) At their depositions, neither officer could recall what the couple was yelling about. (Lee Dep. at 50; Mehirdel Dep. at 30, 32.) However, Lee recalled that it abruptly stopped as the officers double-parked the police car parallel to and a little behind the gray sedan. (Lee Dep. at 50, 55.)

The parties largely agree as to what happened immediately after the police arrived. Mehirdel, who was still in the front passenger seat of the police car, spoke to Rizk through the open car window. (Pl. 56.1 ¶ 25; Def. 56.1 ¶ 25.) In sum and substance, he asked whether everything was okay and she replied that everything was fine. (Id. ) Nonetheless, Mehirdel ordered Gonsalves to approach the officers, gesturing with his hand. (Pl. 56.1 ¶ 26; Def. 56.1 ¶ 26.) The parties disagree about whether Mehirdel used profanity in ordering Gonsalves to approach. (Id. )

The parties agree that Gonsalves did not comply with this order, though they do not characterize happened next in the same way. (Pl. 56.1 ¶ 27; Def. 56.1 ¶ 27.) According to Gonsalves, he initially took a step towards the patrol car in which Mehirdel was still seated and said, "Excuse me." (Gonsalves Dep. at 109.) However, when the officer then exited the car and, in an "irate" fashion told Gonsalves to "[g]et the fuck over here now," Gonsalves took a step back and "froze," as if in disbelief. (Id. ) In contrast, Mehirdel testified that Gonsalves was yelling as he approached the patrol car, and that he stepped out of the car because he felt threatened by Gonsalves. (Mehirdel Dep. at 87, 143.)

The parties agree that Mehirdel then approached Gonsalves, closing to an arm's length from him, (Pl. 56.1 ¶ 28; Def. 56.1 ¶ 28), but they do not agree as to what happened next. According to Mehirdel, Gonsalves started "going off" on him, loudly yelling, "You don't even have a pin. You are a rookie." (Mehirdel Dep. at 74, 77.) As he spoke, Gonsalves "began ... to point in [Mehirdel's] direction multiple times," moving his hand "forward and back and forward and back." (Id. at 74.) The last time he brought his hand forward, Gonsalves "shoved his two fingers in [Mehirdel's] chest," hard enough so Mehirdel felt it through his "very thick" vest. (Id. at 74–75, 190.) Mehirdel, who testified that he had already felt under threat from Gonsalves, decided to arrest – or at least handcuff – him after Gonsalves made contact with his chest. (Id. at 74, 143.)

Lee's deposition testimony corroborates Mehirdel's testimony that Gonsalves made contact with Mehirdel's chest. However, Lee testified that Gonsalves "kept touching" his partner before he "pushed him." (Lee Dep. at 67–68.) In addition, Lee could not recall what part of Gonsalves’ hand touched Mehirdel's chest and admitted that he did not "have a clear view between Detective Gonsalves’ hand and Officer Mehirdel's chest" because he was standing behind Gonsalves. (Lee Dep. 68, 113.)

In contrast, Gonsalves testified at his deposition that he never pushed Mehirdel or made any contact with his chest. (Pl. 56.1 ¶ 32; Gonsalves Dep. at 165–66.) He admitted telling Mehirdel that he was "unprofessional and disrespectful," and saying that he "must be a rookie" because he did not have "a pin" signifying five years of service. (Id. at 162.) It is unclear from Gonsalves’ testimony precisely when he made this comment.

It is also unclear whether Mehirdel said anything after he resolved to handcuff Gonsalves. Gonzales testified that the officers never said he was under arrest and "basically attacked" him. (Gonsalves Dep. at 127.) Lee claims that Mehirdel told Gonsalves to turn around, and that Lee – having worked with Mehirdel for over a year – perceived this order as implying that Mehirdel wanted to handcuff Gonsalves. (Lee Dep. at 11, 75, 78.) However, Mehirdel himself admitted that he was unsure what, if anything, he said before grabbing Gonsalves’ right shoulder and turning him around to face the gray sedan. (Mehirdel Dep. at 75, 140–41.)

The parties agree that after Mehirdel grabbed Gonsalves’ right shoulder, Lee, who had been three feet behind Gonsalves, grabbed his left hand or wrist. (Lee Dep. at 67, 77, 126; Gonsalves Dep. at 125–26.) According to Gonsalves, Lee then twisted his left hand behind his back and pushed him against the gray sedan. (Gonsalves Dep. at 125.) Gonsalves assumed they were trying to handcuff him, though he claimed at his deposition that he did not know why. (Id. at 126.) Gonsalves claims that Lee was hurting his shoulder and wrist and that he told Lee, "I'm a detective. You're going to break my hand." (Id. ) When Lee did not relent, Gonsalves "pulled away" from Lee. (Id. at 127.) According to Lee, Gonsalves slipped free of Mehirdel's grasp – not his – then turned to face the officers. (Lee Dep. at 81–82.)

The parties agree that Lee then forced Gonsalves to the ground. (Lee Dep. at 82; Gonsalves Dep. at 127.) Gonsalves recalled landing face forward on his knees, hands and elbows, with Lee on top of him and Mehirdel on his right side. (Gonsalves Dep. at 127, 129.) Both Gonsalves and Lee recalled that Gonsalves then said he was a police officer or a detective. (Lee Dep. at 84–85; Gonsalves Dep. at 129.)

Although the officers managed to place a handcuff on Gonsalves’ right hand, they never finished handcuffing him. (Gonsalves Dep. at 127, 133.) The officers were interrupted by Rizk, who approached...

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