Dishman v. City of N.Y.

36 Misc.3d 1216

959 N.Y.S.2d 88

2012 N.Y. Slip Op. 51361

Laura DISHMAN, Edward Francis Dishman, and Richard Michael Dishman, Plaintiffs,

v.The CITY OF NEW YORK, the Roosevelt Island Operating Corporation, the Roosevelt Island Public Safety Department, Public Safety Officer Viel, individually and as a peace officer, Public Safety Officer Chavis, individually and as a peace officer, Public Safety Officer Donet, individually and as a peace officer, Public Safety Officers “John Does and Jane Does No.1–# 10”, these name being fictitious, the true names of said, defendants being unknown to the Plaintiff, individually and as peace officers, Defendants.

No. 108554/2009.

Supreme Court, New York County, New York.

July 12, 2012.

Baker, Sanders, Barshay, Grossman Fass, Muhlstock & Neuwirth, LLC, Garden City, NJ, for Plaintiffs.

Ahmuty, Demers & McManus, Esqs., Albertson, NY, for Defendants.

SALIANN SCARPULLA, J.

In this action for false arrest and imprisonment, defendant The City of New York (the “City”) moves for summary judgment dismissing the complaint against it.

On the evening of June 17, 2008, plaintiffs Laura Dishman (“Laura”), Edward Dishman (“Edward”) and Richard Dishman (“Richard”) (collectively “plaintiffs”) were returning home by taxi to Roosevelt Island when several public safety officers (the “public safety officers”) approached them. According to Edward, the public safety officers requested that he pick up a pizza box that had fallen out of plaintiffs' taxi. Plaintiffs allege that after Edward did not comply with their instructions, the public safety officers, including defendant Public Safety Officers Viel (“Viel”) and Chavis (“Chavis”), surrounded Edward and Richard and began hitting and eventually handcuffing them. Laura testified at her deposition that Viel threw her down and handcuffed her after she tried to intervene.

Christopher Dickerson (“Dickerson”), a Senior Insurance Claims Specialist with the City, attests that the public safety officers named in this action were employees of defendant Roosevelt Island Operating Corporation (“RIOC”), not the City. Viel testified at her deposition that defendant RIOC was her employer on the date of plaintiffs' arrest.

After the arrest, plaintiffs were taken to the Public Safety Office on Roosevelt Island, where they remained for approximately two to three hours. There, the public safety officers read plaintiffs their Miranda rights and allowed plaintiffs to speak with their parents. The public safety officers then transferred plaintiffs to the New York Police Department's (N.Y.PD) 114th precinct in Astoria, Queens. Edward testified at his deposition that plaintiffs remained handcuffed there from 3:00 a.m. until 1:30 p.m on June 18, 2008.

According to Edward, plaintiffs were then taken to Central Booking at 100 Centre Street in Manhattan. Edward and Richard remained at Central Booking until the evening of June 19, 2008, during which time they met with an attorney. Laura was transferred to the 7th precinct and later Bellevue Hospital for a psychiatric evaluation. Laura testified that she returned to the 7th precinct at approximately 7:00 P.M., where she remained until the evening of June 19, 2008. All three plaintiffs testified that they were arraigned after 5:00 p.m. on June 19, 2008, approximately forty hours after the arrest.

Plaintiffs commenced this action in May 2009, asserting causes of action for false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress (“IIED”) against Viel, Chavis and Public Safety Officer Donet (“Donet”), both individually and as peace officers, RIOC, the City, and unnamed City employees (collectively “defendants”). Plaintiffs also assert negligent hiring, training, supervision and retaining claims against defendants, and federal civil rights claims, including violations of 42 USC § 1983. Lastly, plaintiffs assert assault and battery causes of action against Viel, Chavis, Donet and RIOC.

On September 29, 2011, plaintiffs filed the note of issue certifying that all necessary discovery in this action was complete.

The City now moves for summary judgment dismissing the complaint against it. The City argues that the Court should dismiss the false arrest and imprisonment, malicious prosecution, and IIED claims against the City because the public safety officers were RIOC, not City, employees and thus the City is not vicariously liable for their actions.¹ Insofar as plaintiffs seek to hold the City liable for actions of NYPD and court personnel, the City argues that there is no evidence of wrongdoing on the City's part after plaintiffs were transferred to NYPD custody.

The City maintains that the negligent hiring claim should also be dismissed because the City was not responsible for the hiring, training or supervision of the public safety officers. The City contends that it is entitled to dismissal of the negligent hiring claim as to City employees because plaintiffs have not identified the individual officers that allegedly mistreated plaintiffs. Lastly, the City argues that it is entitled to summary judgment on the § 1983 claims because plaintiffs have not specified which constitutional provisions the City allegedly violated or proven that a City custom or policy deprived them of their constitutional rights.

In opposition, plaintiffs argue that they are attempting to hold the City vicariously liable for the tortious conduct of NYPD officers and Department of Correction employees after plaintiffs were transferred to NYPD custody, not for the tortious conduct of the public safety officers. Plaintiffs further contend that they have adequately pled a § 1983 claim because they cite the specific constitutional amendments that they allege the City violated.

Discussion

A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Once a showing has been made, the burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980).

Here, the City has made a prima facie showing of entitlement to summary judgment on the false arrest claims against it. Plaintiffs testified that the public safety officers arrested them, and Dickerson attests that the public safety officers were not City employees. Further, Viel testified that she worked for RIOC, not the City. Accordingly, the City is not vicariously liable for any claims arising from plaintiffs' arrest. See Araneo v. Town Bd. for Town of Clarkson, 55 A.D.3d 516, 519, 865 N.Y.S.2d 281 (2d Dept.2008).

However, the City has failed to make an adequate showing entitling it to summary judgment on the false imprisonment cause of action. A false imprisonment claim may arise where “there was an unnecessary delay in arraigning the plaintiff” after arrest. Murray v. City of New York, 74 A.D.3d 550, 551, 903 N.Y.S.2d 34 (1st Dep't 2010) (internal quotations omitted). In New York, “delay of arraignment of more than 24 hours is presumptively unnecessary and, unless explained, constitutes a violation of [Criminal Procedure Law] 140.20(1)....” People ex rel. Maxian v. Brown, 164 A.D.2d 56, 67–68, 561 N.Y.S.2d 418 (1st Dept.1990), affd77 N.Y.2d 422, 568 N.Y.S.2d 575, 570 N.E.2d 223.

The City argues that there is no evidence of any wrongdoing on its part after plaintiffs arrived at the 114th precinct. However, plaintiffs testified that they were detained for approximately forty hours in total, and approximately thirty-seven hours after arriving at the 114th precinct, before arraignment. Such a delay is presumptively unreasonable, see Sorensen v. City of New York, 2000 U.S. Dist. LEXIS 15090, at *38–39, 2000 WL 1528282 (S.D.NY Oct. 13, 2000), and the City has not presented any evidence to rebut plaintiffs' testimony, nor any explanation for the delay. The Court thus denies summary judgment on the false imprisonment cause of action. See Sorensen, 2000...