Valentin v. City of New York

1

2024 NY Slip Op 30968(U)

VICTOR VALENTIN, Plaintiff, v. THE CITY OF NEW YORK, DET. ALEXANDER SOSA, JOHN DOE Defendant.

Index No. 151033/2016, Motion Seq. No. 002

Supreme Court, New York County

March 22, 2024

Unpublished Opinion

MOTION DATE 12/08/2022.

PRESENT: HON. HASAA. KINGO, Justice

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, defendants the City of New York (the "City") and Detective Alexander Sosa ("Detective Sosa") move pursuant to CPLR § 3211 (a)(8) and 3212 to dismiss and for partial summary judgment on the complaint. The plaintiff Victor Valentin ("Plaintiff') opposes. Upon review of the above-referenced motion papers and procedural history of the case, the motion is granted in part to the extent set forth herein.

BACKGROUND

Plaintiff filed this action to recover damages for injuries and civil rights violations he sustained as the result of the execution of a search warrant on his residence and subsequent arrest by members of the New York City Police Department (the "NYPD"). On February 9, 2015, upon a judicial finding of probable cause, the Honorable Kevin B. McGrath Jr. issued Search Warrant 166-2015 authorizing and directing any police officer of the New York City Police Department to enter and search the premises of 59-61 West 109th St., 6th Floor, Apt. 22, New York, New York (the "residence") "for cocaine and any all items that are capable of holding, containing, packaging and/or dispensing cocaine . . . evidence of ownership and use of the target premises or the use of the property located therein by any person" (NYSCEF Doc No. 33, Milnes affirmation in support ¶ 12). Prior to issuance of the search warrant, Detective Sosa received information from a confidential informant and conducted controlled purchases involving narcotics at Plaintiffs residence (id. ¶ 13). On February 9, 2015, both Plaintiff and his son were leaseholders of the residence (id. ¶ 14). Plaintiff later admitted to using cocaine, storing cocaine in the kitchen drawers where he keeps the sugar, and to storing marijuana in the living room (id. ¶ 15). On February 11, 2015, at approximately 6:15 a.m., Detective Sosa and his team executed the search warrant at Plaintiffs residence (id. ¶ 16). Upon entering the apartment, Detective Sosa observed Plaintiff in the living room and Plaintiffs son in the bathroom taking a shower (id.). Detective Sosa recovered several zip lock bags containing cocaine from canisters located in the kitchen, cocaine inside of a dollar bill, and paraphernalia, including a scale, among other items (id.) Plaintiff was later arrested and taken to an NYPD precinct (id.).

Plaintiff testified at a hearing pursuant to General Municipal Law § 50-h (the "50-h hearing") that he was sleeping in the living room on the couch wearing underwear and an undershirt when the police entered the residence (Zullo affirmation ¶ 11). When he woke, he witnessed approximately 10-15 officers breaking down the door and entering the residence (id.). Plaintiff attests that he was veiy scared as the officers broke down the door, "grabbed him, threw him on the floor and started to hurt him" (id.). The officers purportedly "threw Plaintiff on the ground facedown, his knees hit the floor first, they stood on top of him, [] buried their knees in his back and bent his arms backwards . . . excessively beat him while he was on the flood, hit [] and kicked Plaintiff in his body, while a male officer remained on his back (id.). Plaintiff further attests that when he denied having dings or handguns, the police "proceeded to tie Plaintiff up and drag him to the middle of the living room" (id.). He "asked them to be careful because he had a dead arm in his right arm, the handcuffs were hurting him and he requested for the handcuffs to be in front of him rather than behind his back, but the Defendants disregarded his request, and he was cut up around his wrists" (id.). Later, the police allegedly took Plaintiff and his son to a van, where they "slammed Plaintiff inside the van face first on the floor," where his "knees struck the floor of the van first." (id.). He testified that they were left in the van for approximately five (5) hours with no supervision inside the van, as Plaintiff screamed that his knee was fractured (id.). Finally, he testified that at the precinct "Defendant" told him that "if someone asks him if he needs a doctor or ambulance for his injured knee or ami to say no because it would take longer for him to see a judge and it would be worse for his case" (id.) As a result of this incident, Plaintiff alleges he sustained injuries to his right knee, cervical spine, and right shoulder (id. ¶ 12).

According to the Criminal Court Complaint, Plaintiff was charged with Criminal Possession of a Controlled Substance in the Third Degree, Penal Law § 220. 16 (1); Criminally Using Drug Paraphernalia in the Second Degree, Penal Law §§ 220.50 (2) &220.50 (3); Criminal Possession of a Controlled Substance in the Seventh Degree, Penal Law § 220.03; Unlawful Possession of Marijuana, Penal Law 221.05 (NYSCEF Doc No. 33, Milnes affirmation in support ¶ 17). The charges against Plaintiff were ultimately vacated, dismissed, sealed and expunged (Zullo affirmation ¶ 23).

On February 8, 2016, Plaintiff commenced this action by filing a summons and complaint, which interposes six causes of action for (1) assault and battery and excessive force, (2) negligence, (3) false arrest and false imprisonment, (4) malicious prosecution, (5) excessive force and assault and battery under 42 U.S.C. § 1983, and (6) failure to intervene under 42 U.S.C. § 1983. The City served an answer on February 24, 2016, and the parties proceeded to discovery. Defendants now move to dismiss and for summary judgment as follows:

1. Pursuant to CPLR § 3211(a)(8), § 3125(c), and § 306(b), dismissing Plaintiffs claims against Detective Sosa for failure to move for a default judgment and because personal jurisdiction was never obtained as he was never served;

2. Pursuant to CPLR § 3125(c), § 1024 and § 306(b) dismissing Plaintiffs claims against JOHN DOE'S #1 and #2 for failure to timely substitute with the Statute of Limitations;

3. Pursuant to CPLR § 3212, granting Defendants summary judgment and dismissing Plaintiffs claim for false arrest and false imprisonment pursuant to state law and 42 U.S.C. § 1983, as there was probable cause to arrest Plaintiff and City Defendants are qualifiedly immune from suit;

4. Pursuant to CPLR § 3212, for summary judgment dismissing plaintiffs claims for malicious prosecution under state and federal law because there was probable cause to prosecute Plaintiff, there's no evidence of actual malice in his prosecution and the City Defendants are qualifiedly immune from suit;

5. Pursuant CPLR § 3212, dismissing plaintiffs constitutional claims under the 4th, 8th and 14th Amendments because the City Defendants did not deprive Plaintiff of his Constitutional rights;

6. Pursuant to CPLR § 3211(a)(7), dismissing Plaintiffs causes of action for negligence because it is duplicative of Plaintiff s other claims;

7. Pursuant to CPLR § 3211(a)(7), dismissing Plaintiffs claim for negligent hiring, retention training and supervision because the City of New York admits that its employees were acting within the scope of their employment at all times relevant to the underlying incident;

8. For such other and further relief as this Court may deem just and proper. (NYSCEF Doc No. 32, Notice of Motion). Plaintiff opposes.

DISCUSSION

Defendants first move to dismiss the claims against Detective Sosa pursuant to CPLR § 3211 (a)(8), § 3125 (c), and § 306 (b) for failure to move for a default judgment and because personal jurisdiction was never obtained as he was never served. Pursuant to CPLR § 3211 (a)(8), a motion to dismiss may be granted if "the court has not jurisdiction of the person of the defendant." If a defendant moves to dismiss on the basis of lack of personal jurisdiction, the plaintiff must come forward with sufficient evidence to demonstrate jurisdiction (Coast to Coast Energy, Inc. v Gasarch, 149 A.D.3d 485, 486 [1st Dept 2017]). Separately, service of the summons and complaint is required within one-hundred and twenty (120) days after the commencement of an action or proceeding (CPLR § 306-b). Section 3215 (c) of the CPLR provides that if "the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

This action was commenced by service of a summons and complaint on February 8, 2016. No affidavits of service were filed in connection with service of process on either defendant, but filings annexed to a prior unrelated motion attest that the City served an answer on February 14, 2016 (NYSCEF Doc No. 4 Horan affirmation; NYSCEF Doc No. 7, answer). In opposition to this motion, Plaintiff represents that Detective Sosa was served by substituted service on March 2, 2016, as memorialized in an affidavit of service annexed to the Affirmation of Anthony Zullo, Esq. in Opposition to this motion (NYSCEF Doc No. 49, exhibit A, Affidavit of Service). The affidavit of service indicates that on March 2, 2016, process server Anderson Chan served a copy of the summons and verified complaint with notice of commencement of action subject to mandatory electronic filing on Detective...