Scott v. City of New Rochelle

Citation44 Misc.3d 366,2014 N.Y. Slip Op. 24131,986 N.Y.S.2d 819
PartiesCristal SCOTT, Plaintiff, v. CITY OF NEW ROCHELLE, Det. Michael O'Rourke, Det. Terrence Fudge, Det. Clifford Jackson, Sgt. Joseph Salerno, Sgt. Barry Johnson, Police Officer Edward Martinez, Police Officer Louis Falcone, Lt. Hearle, Det. Carpano and Police Officers “John Doe” and Jane Doe” No.1–10, whose names are presently unknown, individually and in their official capacities, Defendants.
Decision Date21 May 2014
CourtUnited States State Supreme Court (New York)

OPINION TEXT STARTS HERE

Law Offices of Francis X. Young, PLLC, by NYSCEF White Plains, attorney for plaintiff.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, by NYSCEF, White Plains, for Defendants.

FRANCESCA E. CONNOLLY, J.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on June 15, 2011 when the City of New Rochelle's police officers searched her home. The defendants move for summary judgment dismissing the complaint in its entirety.

FACTUAL BACKGROUND/PROCEDURAL HISTORY

The notice of claim

On or about August 12, 2011, the plaintiff served a notice of claim on the City of New Rochelle (hereinafter the City) setting forth various claims against the City including, among others, intentional infliction of emotional distress, violation of 42 U.S.C. § 1983, unlawful imprisonment, malicious prosecution, and negligent and excessive use of force. The notice asserted that [t]he claim arose on June 15, 2011 at the claimants' home at 374 North Avenue in New Rochelle, New York, approximately 3:00 p.m., when [the plaintiff] was seized, detained, handcuffed and verbally abused by New Rochelle Police Officers” ( see Notice of Claim at 3). The notice did not state the names of individual police officers involved in the alleged incident.

The complaint and amended complaint

The plaintiff commenced this action on or about June 15, 2012 against the City, Det. Fudge, Det. Jackson, Sgt. Salerno, Sgt. Johnson, Officer Martinez, Officer Falcone, and John and Jane Does asserting state law causes of action for false arrest/false imprisonment, assault, battery, and intentional infliction of emotional distress. The state law causes of action were also asserted against the City based upon the theory of respondeat superior. The plaintiff also asserted a cause of action pursuant to 18 U.S.C. § 1983 against all the defendants. Thereafter, on or about May 23, 2013, the plaintiff amended the complaint to add the defendants Det. Carpano and Lt. Hearle. The City and the individual officers collectively answered the amended complaint, asserting, among other defenses, an affirmative defense based on the statute of limitations.The defendants' motion for summary judgment

In support of their motion, the defendants rely upon, among other things, the deposition transcripts of Det. O'Rourke, Lt. Hearle, Det. Carpano, Sgt. Johnson, Det. Fudge, Sgt. Salerno, Officers Falcone and Martinez, and the plaintiff.

According to the plaintiff's deposition and 50–h hearing,1 on June 15, 2011, at approximately 2:45 p.m., the plaintiff was home in her apartment located in New Rochelle, preparing to shower by removing her pants and underwear when she heard the police knock on her door ( see Plaintiff's Deposition at 5, 13, 19; Plaintiff's 50–h Hearing at 20–21). The officers announced they were from the New Rochelle Police Department, and the plaintiff asked, while the door was still closed, if they would wait a second because she was not wearing pants (Plaintiff's Deposition at 24–25). She “remembers them saying something about guns” and she immediately opened the door (Plaintiff's Deposition at 25). After opening the door, she was faced by a “whole squad” of officers with their guns pointed at her. Using expletives, the police demanded that the plaintiff put her hands up and to step into the hallway (Plaintiff's Deposition at 26). At this point, more than five officers went into the plaintiff's apartment without her consent (Plaintiff's Deposition at 26; Plaintiff's 50–h Hearing at 29). While in the hallway for approximately 10 to 15 minutes, one of the officers pushed the plaintiff against the banister, pointed his gun at her forehead, placed one of his hands around her neck, and handcuffed her (Plaintiff's Deposition at 27–28, 67). The plaintiff testified that she thought “Detective Hurley” was the officer who pointed the gun at her forehead and handcuffed her ( id. at 67). The plaintiff began crying and repeatedly pleaded with the officers to allow her to get dressed (Plaintiff's 50–h Hearing at 39). The same officer who was in the hallway with the plaintiff, repeatedly asked her about the whereabouts of her brother Marlon (Plaintiff's Deposition at 27–28). After approximately 10 to 15 minutes, the plaintiff was brought back into her apartment. Once she was allowed back into her apartment, Det. O'Rourke took charge of the situation (Plaintiff's 50–h Hearing at 36). While in her apartment, she was threatened that she was “going down” if she did not tell the officers her brother's whereabouts (Plaintiff's 50–h Hearing at 32). After approximately 10 minutes inside her apartment, Det. O'Rourke removed the handcuffs (Plaintiff's Deposition at 37). At this time, the plaintiff was allowed to get dressed ( id. at 36). Det. O'Rourke threatened the plaintiff that if she did not call him within 24 hours with information regarding her brother's whereabouts, they would come back to arrest her (Plaintiff's 50–h Hearing at 43). The officers were at the plaintiff's apartment for a total of approximately 45 minutes (Plaintiff's Deposition at 38–39). Thereafter, the plaintiff learned that the police came to her apartment that day in search of her brother Marlon Scott, who was wanted in connection with a stabbing and a shooting (Plaintiff's Deposition at 44–45).

The defendants submit a copy of a felony arrest warrant for Marlon Scott that was issued by the Hon. Susan Kettner, New Rochelle City Court Judge, on June 14, 2011.

According to the deposition testimony of Lt. Hearle, on June 15, 2011, he was advisedby Sgt. Brian Fagan of the New Rochelle Police Department that he had received information from a confidential informant that Marlon Scott could be found at the plaintiff's apartment (Hearle at 13–14). Upon receiving this information, Lt. Hearle, Det. O'Rourke, and Det. Carpano responded to the plaintiff's apartment ( id. at 15). According to the deposition testimony of O'Rourke, when he arrived at the plaintiff's apartment, he had his gun drawn, knocked on the apartment door, identified himself as the police, and told the plaintiff to open the door (O'Rourke at 24). After approximately two to three minutes, the plaintiff, who was fully clothed, opened the door (Hearle at 18, 28; Carpano at 23, 38). After obtaining the plaintiff's consent, Lt. Hearle and Det. Carpano entered and searched the apartment for Marlon Scott, while Det. O'Rourke remained in the hallway with the plaintiff (O'Rourke at 31). Det. Carpano testified that he did not speak with the plaintiff and was inside the apartment for approximately one minute (Carpano at 38).

Sgt. Johnson, Sgt. Salerno, Det. Fudge, Officer Martinez, and Officer Falcone testified at their depositions that they neither entered the apartment building nor spoke with the plaintiff, and their only task was to form a perimeter around the outside of the apartment building to prevent the suspect Marlon Scott from escaping (Johnson at 8–9; Falcone at 12–19; Fudge at 8–11; Salerno at 8–11; Martinez at 8–14). According to Det. Jackson's affidavit, he was briefly inside the plaintiff's apartment, but he did not speak with or otherwise have any physical contact with the plaintiff (Jackson Affidavit at 9–10).

Turning to the defendants' legal arguments, the defendants contend that the plaintiff's state law claims against the individual defendants are procedurally barred since the plaintiff failed to name them in her notice of claim. Similarly, the defendants argue that although the plaintiff asserts a cause of action for civil assault in her complaint, that claim was not identified in her notice of claim and, therefore, it is procedurally barred. Next, the defendants contend that the plaintiff's state law claims, insofar as against Lt. Hearle and Det. Carpano, are time-barred in that the original complaint, which was timely commenced within the one-year and ninety-day limitation period, did not name them as defendants. Since Lt. Hearle and Det. Carpano were not named as defendants until May 23, 2013, which was outside the statutory time period, the defendants contend that the relation-back doctrine does not apply.

The defendants contend that the plaintiff's claims must be dismissed as against the individual officers, other than Lt. Hearle, in that they did not participate in the alleged violations of the plaintiff's civil rights. Further, the defendants argue that the plaintiff's 42 U.S.C. § 1983 claim must be dismissed as against the City insofar as conclusory allegations are insufficient to sustain a Monell claim. The plaintiff's fifth cause of action for intentional infliction of emotional distress must also fail as it is not viable against municipal defendants and, even if it was, the plaintiff cannot establish the requisite elements.

With respect to Lt. Hearle, the defendants contend that the plaintiff's claim for false arrest must fail because the plaintiff consented to the search of her apartment and, thus, the police were authorized to detain the plaintiff during the search. At the very least, the defendants argue that the officers present at the time of the search are entitled to qualified immunity. Lastly, the defendants argue that the plaintiff may not hold the City liable under a theory of respondeat superior because each state law claim that could possibly support such a theory should be dismissed.

The plaintiff's opposition

As an initial matter, in opposition, the plaintiff concedes...

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