Weller v. The City of Mount Vernon
| Decision Date | 05 May 2020 |
| Docket Number | Index 52157/2018 |
| Citation | 2020 NY Slip Op 34940 (U) |
| Parties | PATRICK WELLER, Plaintiff, v. THE CITY OF MOUNT VERNON, POLICE OFFICER RYAN HUGHES, BADGE NO. 2088, POLICE OFFICER JAMES MCPARTLAND, BADGE NO. 2210, POLICE OFFICER PEDRO GUTIERREZ, BADGE NO. 2028, POLICE OFFICERS JOHN/JANE DOES 1-4, Defendants. Motion Seq. 1 |
| Court | New York Supreme Court |
Motion Date: 02/05/2020
DECISION/ORDER
The following papers were considered on the motion of THE CITY OF MOUNT VERNON, POLICE OFFICER RYAN HUGHES (BADGE NO. 2088) POLICE OFFICER JAMES MCPARTLAND (BADGE NO. 2210), POLICE OFFICER PEDRO GUTIERREZ (BADGE NO. 2028), and POLICE OFFICERS JOHN/JANE DOES 1-4 (defendants) (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of PATRICK WELLER (plaintiff) with prejudice as against all defendants:
Papers
Notice of Motion, Affirmation in Support, Exhibits A-H, Memorandum of Law in Support Affirmation in Opposition, Exhibits A-B Memorandum of Law in Reply
Upon the foregoing papers, the court determines as follows:
On November 20, 2016, plaintiff was attending a friend's baby shower in "The Mansion" located in the City of Mount of Vernon. He arrived at the venue at approximately 10:00 p.m. About an hour and a half later, police received a telephone call from Tajan Millan, a security guard on duty at The Mansion, reporting that an individual was allegedly menacing his then girlfriend with a firearm in the second-floor bathroom of the venue. Shortly thereafter police officers with the Mount Vernon Police Department (hereinafter MVPD) including, among others, Ryan Hughes received the radio dispatch call and responded to the scene.
Upon arriving at the premises, Millan told police officers that plaintiff was dangerous, that they proceed with caution in approaching him, and that he overserved plaintiff holding a black handgun while arguing with his girlfriend in front of the ladies' bathroom. Officers then proceeded upstairs to the bathroom and observed the suspect who matched Millan's description, later confirmed to be plaintiff. The officers issued verbal commands to plaintiff to display his hands, which he eventually did, and to get on the ground, which plaintiff allegedly did not comply with.
One of the officers attempted to handcuff him but defendant allegedly refused, thus leading one officer to grab plaintiff's left arm. Meanwhile, Hughes employed an "arm bar" and "leg sweep," forcing plaintiff to the ground and police successfully handcuffed him. The officers stood plaintiff up and one of the officers conducted a pat down search of his person. Police did not discover a concealed firearm on plaintiff's person. Subsequently, James McPartland and Pedro Gutierrez, [1] police officers with the MVPD, arrived at the scene. They joined Hughes along with members of the Emergency Services Unit to search the bathrooms and surrounding areas for a handgun.[2] Unable to locate any firearm or find plaintiff's girlfriend to assess whether any crime had been committed, plaintiff was released by the MVPD at the scene and was not prosecuted for the commission of a crime.
In 2018, plaintiff commenced this action against, among others, the City of Mount Vernon (the City) to recover damages for false arrest, false imprisonment, assault and battery, malicious prosecution, general negligence, negligent training and supervision of police officers, and violations of his rights under the Fourth and Fourteenth Amendments to the United States Constitution for alleged use of excessive use of force and unreasonable seizure.[3] The City filed an answer with 14 affirmative defenses. Following discovery and filing of the note of issue, the City now moves for summary judgment dismissing the complaint. Plaintiff opposes the instant motion.
In support of its motion, the City submits the complaint, transcripts of the examination before trial (EBT) of plaintiff, Hughes, McPartland, and Gutierrez, the MVPD incident report containing supplemental narrative reports of several officers who reported to the scene, and affidavits of Matthew Rosa and Marilena Sophia, MVPD police officers who took part in detaining plaintiff.[4] Plaintiff in opposition submits the bill of particulars and testimony from his General Municipal Law § 50-h hearing.
The City asserts that all claims against McPartland and Gutierrez ought to be dismissed since the two officers had no personal involvement in detaining plaintiff and their role in the incident was limited to search the premises for a firearm and maintain crowd control. Plaintiff does not address this contention whatsoever.
Reviewing the record as to McPartland and Gutierrez's role, they corroborated that they arrived at the scene after plaintiff had been detained and that their initial responsibility was to enforce crowd control. They maintained that they did not observe nor take any part in plaintiff's detention. McPartland and Gutierrez explained that they were directed by a lieutenant to conduct an evidence sweep of the second-floor area, described their search, which ultimately yielded no results. Having spent about 20 to 25 minutes at the scene, McPartland and Gutierrez testified that their investigation was complete and, so, they were directed to report back to MVPD headquarters for a debrief. Gutierrez's supplemental narrative report substantiated as much. McPartland testified that he did not author any report in connection with this incident. Based on the foregoing, the record demonstrates that McPartland and Gutierrez's investigatory role was limited in nature and there is nothing suggesting that they assisted in plaintiff's detention. Plaintiff, in opposition, failed to raise triable issues of fact with respect to those two defendants. Accordingly, McPartland and Gutierrez are entitled to summary judgment dismissing all causes of action insofar as asserted against them (see Washington-Herrera v Town of Greenburgh, 101 A.D.3d 986, 988 [2d Dept 2012]; Tzambazis v City of New York, 291 A.D.2d 397, 397 [2d Dept 2002]).
Next, the City argues that it is entitled to summary judgment inasmuch as the police had probable cause to arrest plaintiff based on a credible tip provided by Millan, the complaining witness. The City contends that the use of excessive force by Hughes was justified because he was acting on a tip that plaintiff was dangerous, notorious for opening gunfire, plaintiff could have been concealing a gun in his waistband and, thus, it was reasonable for Hughes to bring plaintiff down to ground in order to handcuff him. Also, the City maintains that plaintiff's 50-h hearing testimony fails to specifically identify that Hughes allegedly struck him on his head and, notwithstanding, plaintiff has failed to adduce medical evidence that he sustained injuries as a result of Hughes' conduct.[5]
Plaintiff counters that questions of fact exist given his deposition testimony, some of which is glaringly contradictory to that of the police officers who conducted the detention. Plaintiff asserts that he complied with the police officers' instructions prior to the detention, which he points out that defendants have conceded. Secondly, he maintains that the testifying officers did not see him armed with a firearm. In addition, plaintiff assails use of excessive force when Hughes allegedly punched him twice in the back of his head.
At his 50-hearing in 2017, plaintiff testified that, on the night in question, he was talking on his cellphone outside the door of the men's bathroom. Plaintiff avers that about 5 or 6 policer officers approached him with guns drawn, told him to place his hands up, grabbed him, slapped him to the floor, picked him back up, slammed him against the wall, hit his head against the wall about two times, and placed him in handcuffs. Plaintiff testified that a male officer, possibly of Hispanic descent, punched him in the back of his head twice. According to plaintiff, the officers uncuffed him after a few minutes and departed. Plaintiff testified that he was injured as a result of the police tactics, allegedly bleeding from his head, suffered bruises on the back of his head and marks on his right elbow, which necessitated medical treatment at a hospital and subsequent physical therapy.
Plaintiff's testimony at his EBT in 2019 further corroborated his version of the events. He recounted that his then girlfriend, Annett Baker, was in the ladies' restroom, that he was waiting for her directly outside in the hallway and talking on his cellphone for 5 to 6 minutes before police arrived. Although he maintained that the two did not have a fight, plaintiff stated that he "did not remember having an argument" with Baker on the night in question.[6] He testified that he had no interaction with any security guard at the venue that night. He stated, both at his 50-h hearing and his EBT, that he consumed only one small cup of alcohol that night at the party. In describing the encounter with police, plaintiff explained that they never requested identification from him, he "did what [the officers] said" by putting his hand up, but one officer grabbed him and pushed him to the wall while another "hit [him] in the back of the head." Plaintiff also testified that police "banged [his] head against the wall." After bringing him down to the floor, plaintiff described that the officers handcuffed him, searched him, asked him where the weapon was, to which he responded he possessed none.[7]
Plaintiff continued that the officers did not ask him if he had a weapon when they converged on him, only after forcing him down to the ground. He maintained that two officers held him against the wall while he was handcuffed for about...
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