Recitation as Required by CPLR §2219(a): The following papers were read on this Motion for Summary Judgment: Papers Numbered Notice of Motion, Affirmation in Support with Exhibits-City 1 Notice of Motion, Affirmation in Support-Alston 2 Affirmations in Opposition with Exhibits 3&4 Reply Affirmation in Support-City 5 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order of this Court is as follows: Defendants, City of New York (hereinafter “City”), and Merlin Alston (hereinafter “Alston”), move for an order pursuant to CPLR §3211(a)(7), to dismiss plaintiff’s twentieth cause of action (Monell claims as against the City); pursuant to CPLR §§3211(a)(7) and 3212, as to plaintiff’s nineteenth cause of action (state law negligent hiring, training, and retention as against the City), and pursuant to CPRL §3212 for summary judgment dismissing plaintiff’s eighteenth cause of action (state law intentional infliction of emotional distress as against defendant, Alston). Per stipulation dated March 16, 2020, the defendants withdrew the portions of their motions which seek dismissal and/or summary judgment on the first, fifth, ninth, thirteenth, and seventeenth causes of action asserted in plaintiff’s April 6, 2017 amended verified complaint. (See exhibit A to plaintiff’s opposition). Per plaintiff’s opposition papers, plaintiff does not oppose the portion of the City’s motion to dismiss plaintiff’s eighteenth cause of action for intentional infliction of emotional distress against the City defendants. Plaintiff does oppose this portion of defendant Alston’s motion. As such, plaintiff’s eighteenth cause of action is dismissed as to the City, and all individually named NYPD officers, EXCEPT defendant, Alston. This action arises from four (4) arrests of plaintiff taking place on May 6, 2014, June 7, 2014, July 19, 2014 and August 6, 2014, wherein plaintiff alleges she was stopped, searched, seized, handcuffed, arrested, at times assaulted, battered, strip-searched, and prosecuted. Subsequently, all charges were dismissed for each of plaintiff’s arrests. In opposition to the City’s motion, plaintiff submits that her complaint details a continual pattern of conduct by defendant, Alston that was intended to and had the effect of, humiliating, intimidating, and terrorizing plaintiff. Plaintiff also submits an affidavit annexed to her opposition papers wherein she alleges that she was verbally threatened, ridiculed, humiliated, and physically beaten by defendant Alston whenever she would see him, after she filed a complaint against him for her May 6, 2014 arrest, with the Civilian Complaint Review Board. (See Ex. 2 to plaintiff’s opposition). The City argues that plaintiff’s Monell claims should be dismissed as they are not properly pled. (Monell v. Department of Social Services, 436 U.S. 658 [1978]). “To hold a city liable under §1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” (Spencer v. Ellsworth, 2011 U.S. Dist. LEXIS 49984 [S.D.N.Y. 2011]). “To state a viable claim of municipal liability under 42 U.S.C. §1983, a plaintiff must plausibly allege that the violation of his constitutional rights was caused by an official policy or custom of the municipality.” (Bennett v. City of New York, 2011 U.S. App. LEXIS 14029 [2d Cir. 2011]). Municipal governments such as the City of New York, may be sued only for unconstitutional or illegal policies, not for the illegal acts of their employees.(Monell v. Department of Social Services, 436 U.S. 658 [1978]). Per the Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), in order to assess whether a plaintiff has properly pled a Monell claim on a motion to dismiss, a two-pronged approach should be taken. First, the court should identify pleadings if there are well-pleaded factual allegations as opposed to conclusions. If there are well-pleaded factual allegations, the court shall then determine if they give rise to an entitlement of relief. According to the City’s motion, plaintiff fails to allege an official policy or custom of any kind, nor did the plaintiff allege deliberate indifference in the training of police officers. As the City’s motion with respect to plaintiff’s Monell is only pursuant to CPLR §3211(a)(7), the Court will disregard the portion of plaintiff’s opposition regarding summary judgment and will only review the plaintiff’s pleadings to determine the sufficiency of plaintiff’s Monell claims. “A municipality may be found to have a custom that causes a constitutional violation when ‘faced with a pattern of misconduct (it) does nothing, compelling the conclusion that (it) has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” (Okin v. Vill. Of Cornwall-on-Husdon Police Dep’t, 577 F.3d 415 [2d Cir. 2009]). “Municipal liability can be established ‘by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers.”‘ (Id., citing, Sorlucco v. New York City Police Dep’t, 971 F.2d 864 [2d Cir. 1992]). Such a claim can be based on deliberate indifference to, or acquiescence in, the unconstitutional actions of just one officer. (Montanez v. City of Syracuse, 2019 U.S. Dist. LEXIS 10351 [N.D.N.Y. 2019]). “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” (Segal v. City of New York, 459 F.3d 207 [2d Cir. 2006]). Municipal liability may also be premised on a failure to train employees when inadequate training “reflects deliberate indifference to…constitutional rights.” (City of Canton v. Harris, 489 U.S. 378 [1989]). To prove deliberate indifference, we have required the plaintiff to show: (1) “that a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation”; (2) “that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation”; and (3) “that the wrong choice by the…employee will frequently cause the deprivation of a citizen’s constitutional rights.” (Walker v. City of New York, 974 F.2d 293 [2d Cir. 1992]). Plaintiff’s amended verified complaint states the following with regarding to plaintiff’s Monell claims: “that the aforesaid actions by the City constitute a deliberate indifference to a pattern of unconstitutional conduct by the officers, including and in particular Alston, and a deliberate indifference to the rights and safety of U.S. citizens and citizens of the State of New York, and entitle plaintiff to recover damages from the City under 42 U.S.C. §1983 and pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978).” The “aforesaid actions” refer to paragraphs 12-52 of plaintiff’s amended complaint and more specifically, paragraphs 53-58, wherein plaintiff alleges that the City was aware of, on notice of, and was deliberately indifferent to defendant, Alston’s conduct despite “numerous complaints by other citizens involving allegations of excessive force, false arrest, malicious prosecution, pretextual arrests, and other abuses of authority.” (See Ex. C to the City’s motion). Plaintiff contends that her Monell claim is not based on an allegation that defendant, Alston’s actions were consistent with policies and customs of the NYPD, but rather that the City knew about and was deliberately indifferent to an unconstitutional pattern and practice by Alston. This court finds that, in viewing the facts in the light most favorable to plaintiff, plaintiff’s Monell claims, wherein plaintiff alleges that over a four month period, she was arrested four times without probable cause, was subjected to force, was subjected to searches, which resulted in four prosecutions, all of which were dismissed, and in addition to “numerous complaints by other citizens” involving similar allegations, is sufficiently pleaded. Therefore, the City’s motion to dismiss plaintiff’s Monell claims is denied. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). Once movant has met his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). It is well settled that issue finding, not issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 A.D. 2d 258 [1st Dept. 1999]). When the existence of an issue of fact is even fairly debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960]). Turning to plaintiff’s claims of intentional infliction of emotion distress against defendant, Alston. As stated above, the plaintiff does not oppose the portion of the City’s motion for summary judgment as to plaintiff’s eighteenth cause of action as against the City defendants (defendant City, Sean Lynch, Daniel Kern, Marco Morrone, and Brendan Murphy), the eighteenth cause of action is dismissed as to those defendants. However, the court finds that defendant, Alston, is not entitled to summary judgment as to plaintiff’s eighteenth cause of action. There is a question of fact as to whether the alleged conduct by defendant, Alston, as against plaintiff could be determined to be extreme or outrageous. As plaintiff’s complaint alleges that defendant, Alston’s course of conduct sought to intimidate, humiliate, and terrorize plaintiff, this is not duplicative of a claim for false arrest, assault, battery, and malicious prosecution. Further, plaintiff’s deposition transcript and her affidavit annexed as Ex. 1 to plaintiff’s opposition, detail conduct that a trier of fact could find rises to the level of intentional infliction of emotional distress and therefore, this claim as to defendant, Alston remains. (Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361 [1st Dep't 2005]). The court finds defendant, Alston’s argument that plaintiff’s intentional infliction of emotional distress claim is barred by public policy unpersuasive in light of the alleged facts. Lastly, the City moves to dismiss plaintiff’s nineteenth cause of action for negligent hiring, training, retention, and supervision and argues that the City is entitled to governmental immunity. The court finds in viewing the facts in the light most favorable to plaintiff, that the plaintiff has set forth with sufficient specificity a cognizable legal theory against the City for negligent hiring, training, retention, and supervision. Moreover, the City fails to meet its prima facie showing of entitlement to summary judgment on plaintiff’s negligent hiring and retention claim as to defendant Alston, as the City submits no evidence to establish that it was not negligent in the hiring, training, retention, and supervision of defendant Alston. The City fails to submit any evidence that it’s entitled to governmental immunity with regard to defendant Alston either. The City argues that despite prior CCRB allegations and lawsuits brought against defendant Merlin, it’s immune from liability in its discretionary judgment to retain Mr. Alston. However, the City submits no affidavit or evidence that discretion was used in the retention and supervision of plaintiff and therefore, the City has not met its burden for summary judgment. The City’s motion is denied with regard to dismissal and summary judgment on the plaintiff’s claims for negligent hiring and retention. Plaintiff does not oppose the City’s portion of the motion dismissing plaintiff’s negligent hiring, training, and retention claims as against the other named officers, as they were acting within the scope of their employment, and as such, those claims are dismissed as against those officers. Based on the foregoing, the defendants’ motions are denied in part. Plaintiff’s twentieth cause of action remains as to the City, plaintiff’s nineteenth cause of action remains as to the City, and plaintiff’s eighteenth cause of action remains as to defendant, Alston. Plaintiff is directed to serve a copy of this order upon the defendants with notice of entry within 30 days of the entry date. This constitutes the decision and judgment of the Court. Dated: August 11, 2020
