The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 53, 54, 56, 57, 58, 59, 60, 61, 62 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 55, 63 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Upon the foregoing documents and oral argument held on 04/17/2024, Defendants — City of New York and Detective John Santiago’s combined motion to dismiss pursuant to CPLR §§214(5); 217-a; 3211(a)(1) and (7); and GML §50-I, is granted with respect to intentional infliction of emotional distress, punitive damages, Monell violations, abuse of process and federal conspiracy and denied as to all other requested relief. Defendant-ADA Mireille Dee’s motion to dismiss pursuant to CPLR §§3211(a)(1) and (a)(7) is granted. Plaintiff’s cross-motion pursuant to CPLR §§3025(b) and 3101 is denied with respect to amending the complaint and unsealing the grand jury minutes and granted with respect to certain other discovery and the request for a preliminary conference. LEGAL STANDARD On a motion to dismiss pursuant to CPLR §3211(a)(7), the pleading is to be afforded a liberal construction.” Leon v. Martinez, 84 NY2d 83, 87 (1994). This Court is required to “determine only whether the facts alleged fit within any cognizable legal theory.” Bernberg v. Health Mgmt. Sys., 303 AD2d 348, *3 (2d Dept 2003). However, allegations comprising bare legal conclusions are not entitled to the same consideration. See Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137 (2017) quoting Simkin v. Blank, 19 NY3d 46 (2012). MOTION SEQUENCE 1 Defendants — City of New York and Detective John Santiago Motion to Dismiss pursuant to GML §50-I, CPLR §§214(5), 217-a, 3211(a)(1) and (a)(7) MALICIOUS PROSECUTION & FALSE ARREST Defendants — City of New York (hereinafter “Def. NYC”) and Detective John Santiago (hereinafter “Det. Santiago”) (collectively hereinafter “Defs. NYC”) assert Plaintiff’s “first cause of action for malicious prosecution should be dismissed…[because it is] improperly pled” in that the allegations were not specific enough to “overcome the effect of [an] indictment”…and that Plaintiff “alleges only conclusory claims about lack of probable cause and suspected ulterior motives for his [criminal] prosecution.” (Defs. NYC Aff. In Supp. pgs. 3; 5; 8). Defs. NYC further assert Plaintiff fails to meet the requirements of a federal false arrest claim because Plaintiff does not allege who arrested him — Santiago or one of the four John Does — or any factual allegations to substantiate [his] claim.” (Defs. NYC Aff. In Supp. pg. 18). Plaintiff contends Defs. NYC’s “motion to dismiss must be denied as discovery has not been provided”; “a preliminary conference has not been held in this matter”; ” Detective Santiago and ADA Dee fabricated the information about [Plaintiff] having a gun and intending to use it unlawfully against another”; and they both “lied about a witness bystander being injured.” (Plt. Aff. in Supp. of Amend & Opp. pgs. 1-2). “The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice”. Colon v. City of New York, 60 NY2d 78, 82 (1983). “Where there is an indictment, there is a presumption of probable cause.” McQueen v. City of New York, 209 AD3d 469, 470-471 (1st Dept 2022). “The presumption of probable cause attaching upon an accused’s arraignment or indictment may be overcome by evidence that the police witnesses have not made a complete and full statement of facts either to the grand jury or the district attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or that they have otherwise acted in bad faith.” Mendez v. City of New York, 137 AD3d 468, 471 (1st Dept 2016) quoting Maxwell v. New York, 156 AD2d 28 (1st Dept 1990). “Where the presumption of probable cause has been overcome…it can no longer be held as a matter of law that Defendant prosecuted Plaintiff with probable cause and without malice.” Maxwell v. New York, 156 AD2d 28, 34 (1st Dept 1990). This Court finds the adequacy of Plaintiff’s allegations regarding the first two elements (initiation of a proceeding and favorable termination) are indisputable. Although the last two elements, lack of probable cause and malice, are seemingly evidenced by an indictment, Plaintiff sufficiently alleged enough facts to render a decision on the matter premature. This Court finds Plaintiff alleged sufficient facts, including but not limited to the fabrication of evidence, that fit within the legal theory of malicious prosecution and warrant discovery to determine if “evidence was misrepresented, falsified, or withheld”. Mendez at 471; Maxwell at 34. Concomitantly, this Court finds the elements of false arrest “Defendant intended to confine the Plaintiff, that the Plaintiff was conscious of the confinement and did not consent to it, and that the confinement was not otherwise privileged” have been sufficiently pled for the same reasons. Thus, Defendants — City of New York and Detective Santiago’s motion to dismiss is denied in relation to malicious prosecution and false arrest claims. REMAINING CAUSES OF ACTION Defs. NYC assert Plaintiff’s cause of action for “intentional infliction of emotional distress must be dismissed because the notice of claim was untimely, the claim was untimely, and the cause of action is not cognizable, duplicative, and improperly pled.” (Defs. NYC Aff. In Supp. pg. 11). Defs. NYC assert Plaintiff’s cause of action for “punitive damages must be dismissed because it is not cognizable against the Def. NYC…as punitive damages are not allowed against a municipality” and “may not be brought as a separate, independent cause of action.” (Defs. NYC Aff. In Supp. pg. 11). Defs. NYC assert Plaintiff’s cause of action for “Monell violations must be dismissed as improperly pled” because “merely stating an unconstitutional policy or practice existed constitutes conclusory” allegations, which are not sufficient. (Defs. NYC Aff. In Supp. Pgs. 12-13). Defs. NYC assert Plaintiff’s cause of action for abuse of process must be dismissed because “he does not allege any cognizable fact to support his abuse of process claim…[only alleging] Defendants acted with a collateral objective, failed to investigate or evaluate evidence, and coerced the shooting victim to make a statement.” (Defs. NYC Aff. In Supp. pg. 18). Defs. NYC assert Plaintiff’s cause of action for “federal conspiracy must be dismissed because the Plaintiff fails to plead any factual basis to support any meeting of the minds…[or conspiracy] acted in concert…to initiate the arrest and prosecution [or] to obtain cooperation to convict his co-indictee.” (Defs. NYC Aff. In Supp. pg. 19). Plaintiff asserts no opposition to Defs NYC’s argument for dismissal of the above five causes of action. This Court finds Defs. NYC’s i.intentional infliction of emotional distress claim is untimely; [See McGarty v. City of NY, 44 AD3d 447 (1st Dept 2007) (The court held Plaintiff's failure to serve a timely notice of claim or "to seek court order excusing such lateness…requires dismissal of the action.")]; ii. punitive damages claim is not permitted against municipalities; [Sharapata v. Islip, 56 NY2d 332, 334 (1982) (Court held "the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its political subdivisions.")]; iii. Monell violation is improperly pled [Burts v. City of New York, 2018 NY Slip Op 32089(U) (Sup Ct, NY County 2018) citing Ashcrost v. Iqbal, 556 US 662 (2009) ("Court held complaint "fails to sufficiently state a Monell claim [as] a general, boiler plate statement regarding an unidentified policy, practice or custom does not sufficiently assert a cause of action against a municipality.”)]; iv. abuse of process fails to identify the specific acts of a particular party to give such party notice [FTC v. Tax Club, Inc., 994 F Supp 2d 461 (SDNY 2014) ("Pleadings are required to specify which Defendant is alleged to have committed a particular act."); and v. federal conspiracy claim fails as there is no proof of conspiracy (Webb v. Goord, 340 F3d 105, 110 (2d Cir 2003) (Court held to maintain a conspiracy cause of action "a plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end."). Accordingly, the motion to dismiss is granted with regard to the causes of action for intentional infliction of emotional distress, punitive damages, Monell violations, abuse of process claims, and federal conspiracy. MOTION SEQUENCE 2 Defendant A.D.A. Mireille Dee Motion to Dismiss pursuant to CPLR §§3211(a)(1) and 3211(a)(7) ABSOLUTE IMMUNITY Defendant --- ADA Mireille Dee (hereinafter "Def-ADA Dee") asserts this action should be dismissed against her because her "actions in prosecuting the case, the judiciary phase of the proceedings, [provide her with absolute] immunity from state tort and federal civil liability.” (Def-ADA Dee Memo of Law pg. 3). Def-ADA Dee further asserts that her “conduct did not violate [Plaintiff's] clearly established statutory and constitutional rights”; “were reasonable and valid”; and “the criminal prosecution was supported by probable cause, as evidenced by the voting of an indictment by a grand jury” which was subsequently “upheld by the presiding criminal part judge” upon Plaintiff’s application for review at that time.” (Def-ADA Dee Memo of Law pg. 7). Plaintiff contends the Defendant’s motion to dismiss must be denied because “there is no immunity for conduct in the preliminary stages of an investigation before there is probable cause sufficient to warrant an arrest” and that “Detective Santiago and ADA Dee fabricated the information about [Plaintiff] having a gun and intending to use it unlawfully against another…and lied about a witness bystander being injured.” (Plt. Aff in Supp of Amend & Opp pgs. 1-3). Plaintiff argues that Def-ADA Dee “provided legal advice to Det. Santiago with regard to his testimony and participated in the investigation [stage of the criminal prosecution]“. Id at 2-3. Plaintiff argues further that Def-ADA Dee “knew or should have known that Det. Santiago had a history of fabricating evidence…[and] this information was not provided to the Plaintiff or his attorney.” Id at 2-3. “In initiating a prosecution and in presenting the [s]tate’s case, a prosecutor is immune from a civil suit for damages under 42 USCS §1983″. Imbler v. Pachtman, 424 US 409, 431 (1976). “The entitlement of a prosecutor to absolute immunity from a claim for damages against him in his individual capacity on account of his official actions depends principally on the nature of the function performed, not on the office itself.” Ying Jing Gan v. City of New York, 996 F2d 522, 530 (2d Cir 1993); Rodrigues v. City of New York, 193 AD2d 79 (1st Dept 1993). “Where the prosecutorial activities are ‘intimately associated with the judicial phase of the criminal process’, e.g., the ‘initiat[ion of] a prosecution’, the prosecutor is entitled to absolute immunity from liability under section 1983.” Rodrigues v. City of New York, 193 AD2d 79, 85 (1st Dept 1993), quoting Ying Jing Gan v. City of New York, 996 F2d 522, 530 (2d Cir 1993), citing Imbler v. Pachtman, 424 US 409 (1976). “Prosecutors acting in an ” ‘investigative’ ” or ” ‘administrative’ ” capacity are entitled only to qualified immunity.” Rodrigues v. City of New York, 193 AD2d 79, 85 (1st Dept 1993), quoting Barr v. Abrams, 810 F2d 358 (2d Cir 1987). When these principles are applied to the case at hand it is evident that the complaint fails to raise sufficient allegations that would overcome Def-ADA Dee’s entitlement to absolute immunity as a matter of law. Plaintiff has also failed to offer any allegations that would warrant further discovery on the issue. Def-ADA Dee’s actions in prosecuting the case were intimately associated with the judiciary phase of the proceedings and provide her with absolute immunity from state tort and federal civil liability. Rodrigues v. City of New York, 193 AD2d 79 (1st Dept 1993); Stubbolo v. City of New York, 63 AD3d 541, 542 (1st Dept 2009) (Court held that “the complaint fails to sufficiently allege such prosecutorial misconduct and, as a result, the claim is barred by absolute immunity.”) Plaintiff failed to suggest administrative or investigative behavior outside the scope of Def-ADA Dee’s authority. Id. Thus, Def-ADA Dee’s motion to dismiss Plaintiff’s claims is granted in its entirety and this Court need not consider her remaining arguments. PLAINTIFF’S CROSS MOTION Motion to Amend the Complaint pursuant to CPLR §3025(b) Unseal the Grand Jury Minutes pursuant to CPL §190.25(a) Compel Disclosure Of District Attorney’s File & Request For Preliminary Conference Plaintiff’s cross-moves “to amend his summons and complaint, open the grand jury minutes in this case, and to compel the disclosure of the entire file maintained by the District Attorney [including] the memo book and related discovery from Detective John Santiago.” (Plt Aff in Supp of Cr-Mtn pg.1) Plaintiff asserts “that he sufficiently [pled] malicious prosecution and fabrication of evidence claims…and respectfully requests leave to amend the summons and complaint…[noting that] deficiencies will be resolved [and the pleadings] will be amended accordingly to conform to the facts” once “basic discovery is obtained”. Id. at 3. Defs NYC contend the motion to amend should be denied because Plaintiff failed to propose an amended complaint, submit an affidavit of merit, or even suggest changes — all of which bar the Court from adequately evaluating the request. (Defs NYC Reply Aff. City/Det. Pg. 5). Defs NYC further contend that any allegation “that additional discovery is needed to sufficiently plead malicious prosecution is pretextual and insufficient to warrant a denial of the City’s…motion, [as well as] inconsistent with Plaintiff’s assertion that he sufficiently pled malicious prosecution.” Id at 4. Def. ADA Dee contends, “Plaintiff has not provided a proposed amended complaint…an affidavit or complaint verified by the party…[or] new allegations upon which his request is based…[and] even if proven true…[Def-ADA Dee's] actions in prosecuting the case, the judiciary phase of the proceedings, [provide her with absolute] immunity from state tort and federal civil liability.” (Def-ADA Dee Memo of Law pg. 3). Def-ADA Dee further contends, “Plaintiff is not entitled to disclosure of the grand jury minutes…[because he has not] demonstrate[d] a compelling and particularized need that is persuasive enough to overcome the strong presumption in favor of secrecy.” Id At 8. Lastly, Def-ADA Dee contends no amount of discovery will lead to a winning claim…because [she] is…immune from liability…[and] the proposed additional allegations do not support any theory of liability against [her].” Id. CPLR §3025(b) states, “a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” CPLR §3101 states, in relevant part, “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” Criminal Procedure Law §190.25(a) states, in relevant part, “grand jury proceedings are secret, and no grand juror…may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order.” This Court finds Plaintiff’s cross-motion, with respect to leave to amend, is premature. Additionally, it does not include a proposed amendment as required by statute or any specific language from which this Court can make a sound determination. See Travelers Ins. Co. v. Ferco, Inc., 122 AD2d 718 (1st Dept 1986) (where the court held it must “be satisfied that there are sufficient grounds to support the proposed amended pleading” to grant an amendment.) Ergo, the application must be denied. This Court finds Plaintiff failed to meet the high burden required for court mandated disclosure of the grand jury minutes. See In re Dist. Attorney of Suffolk County, 58 NY2d 436 (1983); People v. Addison, 209 AD3d 504, 504 (1st Dept 2022) (Defendant’s motion seeking grand jury transcripts denied because he failed to demonstrate a compelling and particularized need sufficient to overcome the presumption of confidentiality and secrecy.) The motion is denied with respect to the grand jury proceedings. However, this Court finds that the memo book and related discovery from Detective John Santiago are material and necessary in the prosecution of the instant action. Accordingly it is hereby, ORDERED that Defendants — City of New York and Detective John Santiago’s motion to dismiss the complaint is granted with respect to intentional infliction of emotional distress, punitive damages, Monell violations, abuse of process, and federal conspiracy; it is further ORDERED that Defendants — City of New York and Detective John Santiago’s motion to dismiss is denied in relation to malicious prosecution and false arrest; it is further ORDERED that Defendant — ADA Mireille Dee’s motion to dismiss is granted; it is further ORDERED that the matter is dismissed with prejudice against Defendant — ADA Mireille Dee; it is further ORDERED that Plaintiff’s cross-motion is denied with respect to amending the complaint and unsealing the grand jury minutes; it is further ORDERED that Plaintiff’s cross-motion is granted with respect the memo book and related discovery from Detective John Santiago; it is further ORDERED that the action is severed and continued against the remaining Defendants —The City of New York, Detective John Santiago and P.O. John Does 1-4; it is further ORDERED that the Parties shall appear for a preliminary conference in the DCM Part on August 28, 2024 at 2:30P.M. for a preliminary conference; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; ORDERED that the caption is amended and read as follows: GADELL GIBBS, Plaintiff v. CITY OF NEW YORK, JOHN SANTIAGO, P.O. JOHN DOES 1-4 Defendants it is further, ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court, who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website). This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 1, 2024
