Small v. City of New York

• Decision Date: 30 July 2003
• Docket Number: No. 02 CV 3163(NG)(JMA).,No. 02 CV 3147(NG)(JMA).,02 CV 3163(NG)(JMA).,02 CV 3147(NG)(JMA).
• Citation: 274 F.Supp.2d 271
• Parties: Marietta SMALL, Public Administrator of Kings County; as Administrator of the Estate of AMY M. Herrera, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants. Maria Pena, Individually, and as the Administrator of the Estate of Dilcia Pena, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

274 F.Supp.2d 271

Marietta SMALL, Public Administrator of Kings County; as Administrator of the Estate of AMY M. Herrera, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.

Maria Pena, Individually, and as the Administrator of the Estate of Dilcia Pena, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.

No. 02 CV 3163(NG)(JMA).

No. 02 CV 3147(NG)(JMA).

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

July 30, 2003.

COPYRIGHT MATERIAL OMITTED

Derek Sells, Cochran Firm, Alan M. Shapey, New York City, for Plaintiffs.

George L. Repetti, Willistown, NY, Howard Finkelstein, New Rochelle, NY, Alan H. Scheiner, Mark P. Goodwin, Gregory M. Longworth, New York City, Edward Friedman, Brooklyn, NY, Peter Blessinger, New York City, for Defendants.

OPINION AND ORDER

GERSHON, District Judge.

On August 4, 2001, defendant New York City Police Officer Joseph Gray, driving while intoxicated following a twelve hour drinking spree with several fellow officers both on and off 72nd Precinct property, struck and killed Maria DelCarmen Herrera, her son Andy M. Herrera, and her sister Dilcia Pena. Ms. Herrera was eight and one half months pregnant at the time of the accident. Her son, Ricardo Nicanol Herrera, was delivered by caesarean section at the hospital shortly after the accident, but died several hours later. Plaintiffs Marietta Small (as Public Administrator of Kings County and as Administrator of the estates of Andy M. Herrera and Maria DelCarmen Herrera and as intended Administrator of the Estate of Ricardo Nicanol Herrera) and Victor Herrera (as father of Andy M. Herrera and Ricardo Nicanol Herrera and husband of Maria DelCarmen Herrera) (collectively "Herrera plaintiffs") and Maria Pena (individually and as the Administrator of the estate of Dilcia Pena) (collectively "Pena plaintiffs") assert similar claims in multiple counts against defendants Officer Gray; the City of New York, New York City Police Department ("NYPD") Captains Thomas DePrisco, Roy Richter, and Brian White, NYPD Sergeants Peter Moy and Michael Zarilli, NYPD Lieutenant Ricky Karpen, and NYPD Officers Vincent Fiorenza and David Gaskin (collectively "City defendants"); the Police Benevolent Association ("PBA"), PBA representatives Patrick Lynch, Michael Immitt, John Rabinowitz, and John Gallo (collectively "PBA defendants"); NYPD Sergeants Dennis Healey and Keith Singer and NYPD Officers Paul Alba, John Chavez, Jack Conway, Marie DeSario, Michael Gaudio, Gregory Hildebrand, Michael McGill, Anthony Prisinzano, Edward Sills, John Welsh, John Gallo, Michael Immitt, and Edward Rabinowitz (the latter three, in their capacity as PBA representatives, as well as in their capacity as NYPD officers) (collectively "individual officer defendants"); and the Wild, Wild West, Inc. ("Wild, Wild West").

At oral argument, plaintiffs' counsel confirmed that the complaints essentially allege four federal claims: a violation of plaintiffs' substantive due process right to be free of state-created danger; denial of access to the courts; conspiracy, pursuant to 42 U.S.C. § 1983, to violate plaintiffs' right to be free of state-created danger and to deny them access to the courts;¹ and conspiracy, pursuant to 42 U.S.C. §§ 1983 and 1985, to deny plaintiffs equal protection of the law. In addition, plaintiffs bring state law claims against the City and its supervisory officers for the negligent hiring, supervision, and retention of Officer Gray and the negligent supervision and training of the individual officers named in the complaints and against the PBA and its officials for the negligent supervision and training of the individual PBA representatives named in the complaints. Plaintiffs also bring a New York common law wrongful death claim against Officer Gray and a claim for violation of the Dram Shop Act, N.Y. Gen. Oblig. Law § 11-101, against Wild, Wild West.

The City defendants, the PBA defendants, and two groups of individual officer defendants, as well as Wild, Wild West, now bring five separate motions to dismiss plaintiffs' complaints. For the reasons that follow, defendants' motions are granted in part and denied in part.

Statement of Facts

The allegations of plaintiffs' complaints, which are taken as true for the purposes of defendants' motions to dismiss, include the following.

At 8:00 a.m. on the morning of August 4, 2001, upon completing his tour of duty as a patrolman at the 72nd Precinct in Brooklyn, Officer Gray joined several fellow officers and supervisory personnel, including Officers Alba, Chavez, Conway, DeSario, Gaudio, McGill, Prisinzano, and Sills, and Sergeants Healey and Singer, in a four hour drinking binge in the parking lot of the 72nd Precinct, in the full view of both the public and on-duty supervisory officers. Despite provisions prohibiting such conduct in the City's Administrative Code and NYPD regulations, Gray and his fellow officers, including Sergeants Healey and Singer, had engaged in drinking activity, both on and off duty, in both the precinct and its parking lot, on several previous occasions. Captains DePrisco and Richter, Sergeants Healey, Moy, Singer, and Zarilli, and Lieutenant Karpen were at all relevant times supervisory personnel with oversight responsibility for the training, instruction, supervision, and discipline of officers of the 72nd Precinct. Sergeant Moy was the on-duty desk sergeant on August 4, 2001. Sergeant Zarelli was the patrol sergeant. These supervisory personnel knew or should have known about Officer Gray's alcohol consumption on the day in question.

Officer Gray had a history of problems with alcohol, of which the City was aware at the time he joined the force. Several complaints about Officer Gray and other officers' on and off-duty drinking, alcohol consumption on precinct property, and disciplinary infractions had been filed within the 72nd Precinct. Captains DePrisco and Richter, Sergeants Healey, Moy, Singer, and Zarilli, and Lieutenant Karpen were aware of these complaints. Officer DeSario witnessed Officer Gray and Sergeant Singer drinking while on-duty inside the precinct on at least one occasion prior to August 4, 2001.

At approximately noon on August 4, 2001, Officer Gray and several fellow officers and supervisory personnel, including Sergeant Healey and Officers Conway, Hildebrand, and Welsh, drove to the premises of Wild, Wild West, a strip club designated "off-limits" to New York City police officers. Officer Gray and his fellow officers frequented Wild, Wild West on a regular basis in spite of its off-limits designation with the knowledge of supervisory personnel of the 72nd Precinct. Officer Gray and his companions continued to drink for approximately four hours at Wild, Wild West. Officer Gray consumed at least 18 beers during this time period. Officer Gray, at the direction of Sergeant Healey, his supervisory officer, drove Sergeant Healey from Wild, Wild West to the 72nd, Precinct at approximately 4:00 p.m. At approximately 4:30 p.m., the intoxicated Officer Gray entered the precinct in full view of the on-duty desk sergeant, Sergeant Moy. Officer Gray thereafter returned to Wild, Wild West. Officer Gray left Wild, Wild West somewhere between 7:30 p.m. and 8:40 p.m. and attempted to drive back to the 72nd Precinct to begin another tour of duty. At approximately 9:00 p.m., Officer Gray, who was legally intoxicated, ran a series of red lights and struck and killed pedestrian plaintiffs Maria DelCarmen Herrera, her son Andy M. Herrera, and her sister Dilcia Pena. Maria DelCarmen Herrera was eight and a half months pregnant at the time. Her son, Ricardo Nicanol Herrera, was delivered by caesarean section at the hospital shortly after the accident, but died several hours after birth.

In the wake of the accident, officers from the Police Department Accident Investigation Squad and the PBA, including Officers Finkelstein, Gallo, and Immitt were summoned to the scene of the crime. No sobriety tests were administered at the crime scene. Officers Gallo and Immitt specifically discussed with Officer Finkelstein which sobriety test Officer Gray was most likely to "beat." Officer Gray's blood alcohol level was not tested for nearly three and one-half to four hours after the accident. Officers from the Police Department's Accident Investigation Squad thereafter mishandled, lost and destroyed evidence from the crime scene. Film from photographs of the crime scene was not developed. Socks, shoes, and other items of the victims, indicating that they were legally crossing the street at the time they were struck by Officer Gray's car, were removed from the cross-walk. Officer Finkelstein, in direct contravention of explicit directions from the Kings County District Attorney's Office, failed to deliver Officer Gray's collected blood to the Medical Examiner's office. Other police officers attempted to influence civilian witnesses, including witness Rosa Cintron, to change their statements to blame the victims for the accident. In subsequent investigations, several officers failed to provide candid answers regarding Officer Gray's activities on August 4, 2001 and the handling of evidence at the crime scene.

On May 2, 2002, Officer Gray was convicted, following a jury trial in New York Supreme Court, Kings County (Feldman, J.), of one count of driving while intoxicated, one count of driving with a suspended license, and four counts of second degree manslaughter for recklessly causing the deaths of Maria DelCarmen Herrera, Andy M. Herrera, Ricardo Nicanol Herrera, and Dilcia Pena. On May 23, 2002, Officer Gray was sentenced to an indeterminate prison term of five to fifteen years.

Motion to Dismiss Standard

In considering a motion to dismiss made pursuant to Fed.R.Civ.P. Rule 12(b)(6), the court must accept the factual allegations in the complaints as true, and draw all reasonable inferences in favor of plaintiffs. Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995)....