Yang Feng Zhao v. City of New York

Citation656 F.Supp.2d 375
Decision Date23 September 2009
Docket NumberNo. 07 Civ. 3636 (LAK).,07 Civ. 3636 (LAK).
PartiesYANG FENG ZHAO, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Eric Wayne Siegle, Jonathan D. Sims, Siegle & Sims L.L.P., New York, NY, for Plaintiff.

Afsaan Saleem, New York City Law Department, New York, NY, Jennifer Amy Rossan, NYC Law Department Office of the Corporation Counsel, Brooklyn, NY, John Hopkins Graziadei, New York City Law Depart. Office of the Corporation Counsel, Bronx, NY, for Defendants.


LEWIS A. KAPLAN, District Judge.

Plaintiff and defendants cross-move for partial summary judgment. In an extensive and thorough report and recommendation dated August 28, 2009 (the "R & R"), Magistrate Judge Michael H. Dolinger recommended that defendants' motion be granted in part and denied in part and that plaintiffs motion be denied. Both sides have objected to the R & R at least in certain respects.

Having carefully considered the matter, the objections are overruled. Plaintiffs motion for partial summary judgment [DI 112] is denied in all respects. Defendants' cross-motion [DI 120] is granted to the extent that plaintiffs Monell claim against the City and his claims for assault and battery, defamation, intentional infliction of emotional distress, and negligence all are dismissed. Their cross motion is denied in all other respects.

The Clerk shall terminate docket item 151, the defendants' objections to the R & R, which were improperly docketed as a motion.



MICHAEL H. DOLINGER, United States Magistrate Judge.


Plaintiff Yang Feng Zhao commenced this lawsuit against a number of New York City police detectives and the City of New York in the wake of the December 2006 dismissal of a murder charge filed against him more than one year earlier. In his amended complaint he sues two police detectives (Dets. Nga Cheung Ng and Billy Milan), a police sergeant (Sgt. Brian Conlon), and the City, contending that they arrested him in October 2005 for a 2001 night club murder, that they did so without probable cause, and that shortly after his arrest they used physical violence, threats, and psychological coercion to extract his consent to a manufactured, false confession. He alleges further that they used the false confession as well as lies to the District Attorney's Office of Queens County to procure an indictment of him for that murder. As a result, he says, he spent nearly a year in jail, after which time he was released and the charge dismissed based upon the prosecutor's representation to the court that he was not involved in the murder.

Based on these allegations plaintiff asserts federal and state-law claims for false arrest and malicious prosecution, federal claims of excessive force and violation of his right not to incriminate himself,1 as well as state-law claims for assault, battery, intentional infliction of emotional distress, defamation, and negligence. He also asserts a Monell claim against the City for pursuing practices or policies that countenance the types of constitutional violations alleged here, as well as for a failure to train and supervise police personnel in conducting investigations, assessing evidence, undertaking interrogations, and handling so-called cold cases. He seeks an award of compensatory and punitive damages against the individual defendants and compensatory damages from the City.

At the conclusion of discovery, both defendants and plaintiff have moved for partial summary judgment. Defendants seek dismissal of (1) the Monell claim, (2) the federal false-arrest claim, (3) the federal excessive-force claim, and (4) all of the state-law claims, thus leaving the federal malicious-prosecution and self-incrimination claims for trial. Plaintiff of course opposes defendants' motion, and he asks for partial summary judgment on his federal and state-law claims for false arrest, seeking a ruling that the police arrested him without probable cause and that the City is liable for these wrongs. In addition, plaintiff has requested that, if the state malicious-prosecution claim is deemed unexhausted under the New York General Municipal Law, as defendants argue in their papers, he be given leave to file an out-of-time administrative notice of claim under New York Gen. Mun. Law § 50—e.

For the reasons that follow, we recommend that defendants' motion be granted in part and denied in part. We further recommend that plaintiff's motion be denied in its entirety.

The Basic Facts

In the early morning hours of December 11, 2001, at the Gold Box Karaoke Club in Queens, a club employee named Danny Cabezas was fatally stabbed by a patron of the club. (Pl.'s Mot. for Summ. J. Ex. ("PX") 1). Cabezas was working as a bouncer that night (Huang Dep. 8),2 and shortly before the stabbing had been involved in an altercation with a group of patrons. (N.Y.C 7063; PXs 5-6; Lau Dep. 49-55; Romano 5/14/08 Dep. 218-19; Milan Dep. 156-57, 186; Zhao Dep. 119-23). The events surrounding the stabbing, including the physical altercations between Cabezas and the patrons as well as the departure of that group of patrons after the stabbing, were recorded in part by several video cameras that were operating that night at the club. (See, e.g., NYC 706, 707, 708; PX 31).

Within hours of the incident the police interviewed a number of club employees. The manager of the club, George Huang, recounted that shortly before the killing, he was in a room at the club when he heard a noise, left the room, and observed Cabezas in the main hall area of the club, fighting with a number of male and female Chinese patrons who had been in Room 6 of the club. Huang reported that he had broken up the fight, and that Cabezas had then escorted those patrons out of the club. According to Huang, shortly afterward Cabezas returned along the hall from the direction of the exit, clutching his chest, and then fell to the floor near Room 9. Huang further reported that two men from the group in Room 6 had remained behind, looking for their shoes, while Cabezas was escorting the others towards the exit. Only after Cabezas returned, already wounded, did the two men leave, and they had nothing in their hands. (PX 24; Wilkinson Dep. 32-37). It later transpired that plaintiff Zhao was one of these two men. (Zhao Dep. 124-27; Oct. 6, 2008 letter to the court from Eric W. Siegle, Esq. ("Siegle Letter") Ex. 2 at 34-38).

Ms. Yun Chen, a waitress, recounted to the police that Huang and a club employee named Peter (apparently assistant manager Peter Yee) had stopped a fight between Cabezas and some men who had been in Room 6. She stated that Cabezas had then escorted those patrons towards the area of the stairs where an exit led out of the club. Moments later, she said, she saw him return from the stairway area, holding his chest and bleeding from the stomach area. He then fell to the ground in front of Room 9. (PXs 20-21; Ng 10/16/07 Dep. 65-68, 71-73, 95-98). Ms. Chen did not see the stabbing itself. (Ng 10/16/07 Dep. 90-91).

Another waitress, Yu Hua Huang, recounted that she had heard some yelling and had looked out into the hall and seen some men descending the stairs. Shortly thereafter Cabezas returned from the area of the exit, clutching his chest. He then fell near her. (PX 22; Maline Dep. 69-74, 76-86). Ms. Huang also did not see the stabbing. (Maline Dep. 91-92).

The police also interviewed Peter Yee. He reported that he had been in a room playing cards with Huang when they heard a banging sound and overheard Cabezas arguing with some Asian men. They ran from the room into the hall and saw Cabezas fighting with approximately six men. Yee and Huang stopped the fight and told Cabezas to walk away and leave the men alone. According to Yee, Cabezas walked to the end of the hallway, where more fighting then erupted between him and the other men, who apparently attacked him. Yee ran towards the group to stop the fight and saw one Asian man, wearing a white ski jacket, leap up and strike Cabezas in the chest, possibly stabbing him. After Yee stopped this fight, Cabezas walked back down the hall and collapsed, bleeding profusely. (PX 23; S. Rivera Dep. 19-23, 38).

Both Huang and Yee spoke further with the investigating police (who included defendant Ng) at the 109th precinct that same night. At that time they observed some of the club videotapes. Watching the tapes, Yee recounted the second fight, which he said had occurred around the stairwell that led to an exit from the club. He reported again that a man had jumped past him and lunged at Cabezas, and this time he identified that man on the video as a man who was long-haired and wearing a white T-shirt. (PXs 30-31; Ng 10/16/07 Dep. 125-28; Ng 5/23/08 Dep. 220-23). Huang also confirmed that the second fight had occurred by the stairwell and that Cabezas had then staggered down the main hall, where he collapsed in front of Room 9. (PX 17; Huang Dep. 16-17, 24-27, 120-21).

In the wake of these interviews and the review of the available videotapes, the police then investigating the murder inferred that the stabbing had taken place in a small area at the stairwell, near the second-floor entrance to the club, which was at the far end of the main hallway. They further inferred that the assailants were the men with whom Cabezas had fought minutes before, and that Cabezas, after being stabbed, had staggered down the main hallway for a short distance before collapsing. (See, e.g., Romano 5/14/08 Dep. 213-14, 216; Romano 10/18/07 Dep. 81-86; Romano 4/9/08 Dep. 229-31; Casazza Dep. 99-101; PXs 6-7). This version was reiterated by one of the investigators, Det. Vincenzo Romano, when he spoke to the press and asked, through news outlets, for public assistance in identifying the assailants. (Romano 5/14/08 Dep. 200-02; Romano 10/18/07 Dep. 81-86; PXs 6-7, 12).

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