Savane v. The City of New York

• Decision Date: 17 May 2023
• Docket Number: Index No. 153348/2015,Motion Seq. No. 003
• Citation: 2023 NY Slip Op 31665 (U)
• Parties: OUSMAN SAVANE, Plaintiff, v. THE CITY OF NEW YORK, DET. NELA GOMEZ (TAX ID NO. 938585), SGT. ANGEL LEON (TAX ID NO. 917866), SGT. GREGORY ACCOMANDO (TAX ID NO. 923481), SGT. TYNETTA JACKSON (TAX ID NO. 920423), SGT. LUKE SULLIVAN, Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 31665(U)

OUSMAN SAVANE, Plaintiff,
v.
THE CITY OF NEW YORK, DET. NELA GOMEZ (TAX ID NO. 938585), SGT. ANGEL LEON (TAX ID NO. 917866), SGT. GREGORY ACCOMANDO (TAX ID NO. 923481), SGT. TYNETTA JACKSON (TAX ID NO. 920423), SGT. LUKE SULLIVAN, Defendant.

Index No. 153348/2015, Motion Seq. No. 003

Supreme Court, New York County

May 17, 2023

Unpublished Opinion

MOTION DATE 01/30/2022

DECISION + ORDER ON MOTION

HON. J. MACHELLE SWEETING JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 85, 86, 87, 88, 89, 90, 91, 92, 94, 95, 96, 97, 98, 99, 100, 118 were read on this motion to/for DISMISSAL_.

In this lawsuit, plaintiff Ousman Savane alleges that on October 4, 2012, the City of New York ("the City"), through the actions of defendant police sergeants and police detective (the "police officers") (hereinafter referred collectively with the City as "defendants"), arrested him and accused him of sexually assaulting a minor. Plaintiff contends that the arrest was unlawful and that he was arrested without a warrant, and that the police officers acted in bad faith. He also states that he was "assaulted and battered" while in custody (NYSCEF Doc. No. 89 [Complaint], ¶¶ 54-55). He was incarcerated at Riker's Island from October 4, 2012, and he was charged and prosecuted. After around 15 months in custody, on January 13, 2014, "all charges against him were dismissed and he was released from custody" (id, ¶ 44). The dismissal occurred after the assistant district attorney determined that the complaining witness's report was not credible.

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Shortly after his release, plaintiff filed a notice of claim with the City's comptroller and on April 6, 2015, he filed a summons and complaint. The complaint sets forth 17 causes of action against defendants as well as against District Attorney Cyrus Vance, and Assistant District Attorney Nahal Batmanghelikj (the "DA defendants"). The causes of action are: 1) false arrest against all defendants, 2) assault and battery against defendant police officers, 3) malicious prosecution against all defendants, 4) intentional infliction of emotional distress against all individual defendants, 5) negligence against all defendants, 6) negligent hiring, training, and supervision against the City, 7) 42 USC § 1983 against all defendants based on the first three causes of action, 8) 42 USC § 1983 against the DA defendants, 9) 42 USC § 1983 alleging conspiracy against all defendants, 10) 42 USC § 1983 alleging a violation of Brady v Maryland (373 U.S. 83 [1963]) against all individual defendants, 11) 42 USC § 1983 alleging unreasonable length of detention against all defendants, 12) 42 USC § 1983 against all defendants, alleging failure to intervene to prevent the mistreatment of plaintiff, 13) 42 USC § 1983 alleging procedural and substantive due process violations against all defendants, 14) 42 USC § 1983 alleging unreasonable decision to continue the prosecution of plaintiff, against all defendants, 15) 42 USC § 1983, against the City, 16) Article I, § 12 of the State constitution against the individual defendants, and 17) 42 USC § 1988 against all defendants.

The DA defendants moved to dismiss the entire action as against them. On November 6, 2015, the court (Judge Kotler) granted the motion in part (Motion Sequence #001) (NYSCEF Doc. No. 30). The court (Judge Kotler) also denied the DA defendants' motion to reargue (Motion Sequence #002) (NYSCEF Doc. No. 62). In an order dated March 23, 2017, the First Department reversed the trial court's order to the extent that it failed to dismiss all causes of action against the

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DA defendants (Savane v District Attorney of New York County, 148 A.D.3d 591 [1st Dept 2017], NYSCEF Doc. No. 72).

In the current motion, (Motion Sequence #003), defendants seek dismissal, pursuant to CPLR § 3211 (a)(7) of the second, fourth, fifth, sixth, fifteenth, and sixteenth causes of action as against all remaining defendants. They also seek to dismiss the seventh, ninth, eleventh, twelfth, thirteenth, fourteenth, and seventeenth causes of action as against the City. In opposition, plaintiff concedes that the second, fourth, fifth, sixth, and sixteenth causes of action should be dismissed, and plaintiff also concedes that the seventh, ninth, eleventh, twelfth, thirteenth, and fourteenth causes of action should be dismissed as against the City. However, plaintiff opposes that branch of defendants' motion that seeks dismissal of the fifteenth cause of action alleging violations of 42 USC § 1983 against the City and the seventeenth cause of action, providing for attorneys' fees pursuant to 42 USC § 1988, as against the City.

Applicable Standards under CPLR § 3211 (a)(7)

When a court considers a motion to dismiss under CPLR § 3211 (a)(7), it "is required to accept as true the facts as alleged in the complaint, accord the plaintiff the benefit of every favorable inference and strive to determine only whether the facts alleged fit within any cognizable legal theory" (Vig v New York Hairspray Co., L.P., 67 A.D.3d 140, 144-145 [1st Dept 2009]; see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 [2021]). The court does not decide "[w]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims" (Mirro v City of New York, 159 A.D.3d 964, 966 [2d Dept 2018] [internal quotation marks and

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citation omitted]; see CSC Holdings, LLC v Samsung Elecs. Am., Inc., 192 A.D.3d 556, 556 [1st Dept2021]).

Plaintiffs fifteenth cause of action, which is a 42 USC § 1983 claim, arises under Monell v Department of Social Servs. of City of New York (436 U.S. 658 [1978]). In Monell, the United States Supreme Court ruled

that a local government may not be sued under § 1983 for an injury solely inflicted by its employees or agents Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983" (Monell, 436 U.S. at 694).

To survive a motion to dismiss a Monell claim, the plaintiff must plead that: (1) an official policy or custom exists as a result of which (2) the plaintiff is subjected to (3) the denial of a constitutional right (Pilcher v City of New York, 68 Misc.3d 1211 [A], 2020 NY Slip Op 50913 [U], *1 [Sup Ct, Bronx County 2020]). Broad, conclusory allegations of an unconstitutional policy are not sufficient (Fludd v City of New York, 199 A.D.3d 894, 897 [2d Dept 2021] [under CPLR § 3211 [a] [7]). Instead, the complaint must have "facial plausibility," which exists only when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" (Ashcroft v Iqbal, 556 U.S. 662, 678 [2009]). More specifically, the plaintiff must allege that an official policy or custom of the government caused the employees to violate her or his constitutional rights (Hetelekides v County of Ontario, 39 N.Y.3d 222, 240 [2023] [dismissing cause of action after bench trial]). That is, the actions must result from the policy or custom (see Chavez v City of New York, 33 Misc.3d 1214 [A], 2011 NY Slip Op 51930 [U], *2-3 [Sup Ct, NY County 2011], affd 99 A.D.3d 614 [1st Dept 2012]). In addition, the practices must be "so persistent and widespread as to practically have the force of law" (De Lourdes Torres v Jones, 26 N.Y.3d 742, 768 [2016] [internal quotation marks and citation omitted]

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[summary judgment]). Thus, a single unconstitutional incident generally is insufficient to support a claim (Fischetti v City of New York, 61 Misc.3d 1224 [A], 2018 NY Slip Op 51737 [U], *3 [Sup Ct, Queens County 2018] [summary judgment]).

Discussion

According to plaintiffs fifteenth cause of action, the police officer defendants engaged in their alleged misconduct "pursuant to policies and practices of the City of New York which were in existence at the time of the conduct. . . and were engaged in with the full knowledge, consent, and cooperation and under the supervisory authority of the defendant CITY and its agency, the NYPD ..." (NYSCEF Doc. No. 89, ¶ 238). Further, the cause of action alleges that these policies and practices proximately caused plaintiff s injuries. More specifically, the complaint asserts that, among other things, the City's police department had policies and practices of ignoring the civil rights of its citizens, of ignoring police misconduct, of failing to supervise and train its officers as to the limits of their authority, leading to "a pattern of deliberate indifference" to constitutional rights (id, ¶ 243), and of allowing citizens to be "wrongfully accused of committing crimes that the police . . . knew they had not committed" (id, ¶ 250), and of failing to discipline officers who did not conduct proper investigations, preserve evidence, or respect citizens' constitutional rights (see id, ¶ 258). In addition, the complaint states that the police department fails "to . . . control police officers engaged in the excessive use of force, in warrantless and otherwise unconstitutional and impermissible arrests and imprisonments, particularly those who are repeatedly accused of such acts; and [that it endorses] the police code of silence wherein police officers regularly cover up police abuse of power by telling false and incomplete stories" (id, ¶ 264). The complaint alleges that the City did not establish a proper...