Bacote v. City of New York

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Bacote v City of New York 2024 NY Slip Op 32168(U) June 30, 2024 Supreme Court, Kings County Docket Number: Index No.: 510559/2021 Judge: Gina Abadi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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At an lAS Term, City Part 7 of the Supreme Court of the State or 1':cw York, held in and ror the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York. on the 24 111 day or June, 2024. PRESENT: HON. GINA ABADI, J.S.C.

KENNETH BACOTE, Plaintiff. Index No.: 510559/2021 -against- Motion Seq: J_

TIIL CITY OF NEW YORK, DECISIO¹'\ /\ND ORDER POLICE SERGEANT JASON RUSGERZOG - Shield No 4576, POLICE OFFICER DANIEL M. MOUSSANNEF - Shield No. 14212. and JOI IN DOES - Police Officers As Yct L'nidentified,

Defendants.

Recitation. as required by CPLR ~ 221 lJ(a). uf the papers considered in the review of this motion:

Papers NYSCEF Numbered

1\oticc of Motion/Cross Motion 10rder to Show Cause und Affidavits (Affirmations) Annexed .............................. . 31 - 60 Opposing /\r!idavits (/\ffirrnatinns) ............................. . 61-67 Reply Affidavits (/\flirmations) ................................ . 68 -69 Other ..................................................... .

Upon the foregoing cited papers and after oral argument in this action brought by

Kenneth Bacote (plaintifO against the City of Nev,, York (City), Police Sergeant Jason

Rcisgerzog (Sergeant Reisgerzog), and Police Officer Daniel M. Moussanncf (PO

Moussannef), the Decision and Order on their motion for an order. pursuant to

Cl'LR ~( 32 I 2(b) ~md 321 I ( a )(7 ). dismissing the complaint as against them is, as follows:

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Po111cruy, 35 NY2d 3(Jl, 364 (1974). '•Since it deprives the litigant of'his for her] day in

court[,l it is considered a drastic remedy which should only be employed when there is no

doubt as to the absence of triable issues." lcl. "This drastic remedy should not be granted

where there is any doubt as to the existence of such issues, or where the issue is arguable;

issue-finding, rather than issue-determination, is the key to the procedure.'' Sillman v

Tivcntieth ec,111111:i--For Fi/111 Corp,, 3 :'JY2cl 395, 404 ( 1957) ( internal quotation marks and

citations omitted), reorg denied 3 NY2cl 941 ( 1957 ).

The movant's "burden is a heavy one and on a motion for summary judgment, facts

must be viewed in thc light most favorabk to the non-moving party." Willia111 J. Jenack

/:'s/ulc /lpprnisCl's & Auctioneers, Inc. v Robi::ucleh, 22 NY3d 470, 475 (2013) (internal

ciwtion and quotation marks omitted). "/\ motion for summary judgment should not be

granted where the facts arc in dispute, where conllicting inferences may be drawn from the

evidence. or where thcrc arc issues of credibility." Lope:: i· Beltre, 59 AD3d 683, 685

(2d Dept 2009) (inlernal quotation marks omitted). "Where the moving party fails to meet

this burden, summary judgment cannot bc grantcd, and the non-moving party bears no

burden to otherwise persuade the court against summary judgment." Rahizadeh. 22 NY 3 d

at 475. '"Indeed. the moving party"s failure to make a prima facic showing of entitlement

to summary _judgment requires a denied of the motion, regardless of the sufficiency of the

opposing papers." id.'

7 In the interest or brevity, the recitation of the less stringent standard of rc\"icw under CPLR § 3 211 (a)( 7) is omitted.

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Discussion

1. Common-Law False Arrest/Imprisonment

Plaintiff's third nnd fourth causes of action alleging common-lav,/ false arrest and

false imprisonment, respectively, are merely two names for the same tort. See Jackson v

Police Derr n(Ci1_,· o(.\T. 86 AD2d 860. 860-861 (2d Dept 1982). "To establish a cause

of action alleging false arrest and false imprisonment, the pl~1intiff must show that ( l) the

defendant intended to confine him. (2) the plaintiff was conscious of the con t'incmcnt. ( 3)

the plaintiff did not consent to the confinement. and (4) the confinement was not otherwise

privileged." !"cc\' City (~/'NY. '272 AD2d 586, 586 (2d Dept 2000). ''Where. as [hereJ, an

arrest is made without a warrant. a presumption urisl:s that it was unlawful. and the burden

of proving that the arrest was otherwise pri\ilcg:cd is cast upon the defendant.'' vVi!!iol!ls r

Moore, 197 J\D2d 51 L 513 {2d Dept 1993 ). "In general, the existence or absence of

probable cause is a question of fact and becomes a question of law to be decided by the

court only where there is no real dispute us to the facts or the proper in krcnccs to be dr:1wn

therefrom." Holland 1 City of PoughkeeJJ.1il', 90 i\D3d 84L 845 (2d Dept 2011) (internal 1

quotation marks omitted).

AL this stage or litigation, there arl.': triable issues of fact ~ based on the police

officers' body-worn camera footage taken from different angles, 8 as well as based on the

~ See Body-Worn Camern Footage of nonparties PO Officers Viera and Lester. Sergeant Rcisgcrzog was not wearing a body camera at the time of the incident. Sergeant Rcisgcrzog's EBT tr at page 57, line 18 to page 58, line 10.

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may be held vicariously liable under the state hm claim for torts committed by Sergeant

Rcisgerzog acting (as he admittedly did) within the scope of his employment \vith NYPD.

See Eckardt v City of White Plains, 87 AD3d l 049, I 051 (2d Dept 2011 ). Accordingly,

ddcndants have failed to establish their prima facic entitlement to judgment as a matter o!'

law dismissing plaintiffs third ,.md fourth causes of action !'or common-1:Jw false arrest and

false imprisonment. respectively. without regard to the sufficiency of plaintiffs opposition.

2. Common-Law Assault/Battery

"To recover damages for [common-law] battery, 8 plt1intiff must prove that there

was bodily contact, that the contact was offensive, i.e., wrongCul un(_kr all or the circumstances, and intent to make the contact without [his or hcrJ consent." Higgins v

I lomifro11, IR J\D3d 436. 436 (2d Dept 2005). Ii· denied 5 NY3d 708 (2005). "A [common-

law] ... assault is an intentional placing of another person in fear of imminent hannful or

offensive contact." Charkhy \' Altman. 252 AD2d 411. 414 ( I st Dept 199X) (internal

quotation marks omitted). ";\ cl:1im predicated on [common-law] assault and battery may

be based upon contact durtng an unlmvful arrest." Carruth 1 Ciry of Mount Vernon, 1

188 AD3d 1139. 1141 (2d Dept 2020). The existence of probable cause for an arrest and

ensuing imprisonment does noL bar a cause of action sounding in common-law assault and

battery based on the excessive use of force in connection \vith the underlying arrest and

imprisonment. 5,'ee Twrcfw!is 1· Cirr o/Mount h,,,-11011. 293 AD2d 525, 526 ( 2d Dept 2002 ).

To prevail on a cause or action [cw common-law assault and battery committed in the police officer's perfomiance of a public duty, plaintiff must establish that such police

officer used excessive fon.:c under state law. See Disla 1· City uf Nr, 117 AD3d 617, 618

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( 1st Dept 2014). In that regard. •·rrlolicc officers arc entitled to qualified immunity on

Icommon-] law claims i r their actions arc objectively reasonable." Plen1 ,, Countr of S11/j(J/k, 222 AD3d 795, 796 (2d Dept 2023) (internal quotation marks omitted). The

detcrrnin8lion of whether a usc of force under state law was objectively reasonable is

an "intensely factual'' question "best left for a jury to decide.'· Plern, 222 AD3d at 797

(internal quotation marks omitted): see Holland. 90 AD3d at 845. As noted, a municipality

may be vicariously liable on common-law assault and battery claims for torts committed

by a police officer while acting within the scope or his/her employment. See Lepore v Tm1'11

o(Grec11h111gh. 120 AD3d 1202, 1204 (2d Dept 2014).

At this stage of litigation, defendants, as part of their prima facic showing, have

faikJ to eliminate triable issues of fact as to whether Sergeant Rcisgerzog used excessive

force in deploying his laser at the time and place of the incident to subdue and arrest an

unarmed, 53-ycar-old man who was then sitting on a public bench in his housing project.

See Plew1, 222 J\ D3d at 797; Macareno ,, City of NY, 187 ;\ 03d l 164, 1 167 (2d Dept

2020); /lo/land, 90 ADJ<l at 844. Furthcr, defendants' aforementioned failure to establish.

prirna r:icic, that plaintiffs warrant less arrest \vas L1wf\il precludes an award of summary

judgment on his concurrent claims for common-law assault and battery. See Cayrnth.

188 AD3d at I 141. 11 Once again, such denial is without regard to the sufficiency of

plaintiffs opposition.

11 l kl\:ndants' n:I iance un NYl'I) l'atrol (iuidc l'roccdmc No. 221-0X ("Use of Conducted Electrical Weapons lCl:W]"), effective June 24, 2021. and NYPD Patrol Cruidc Procedure No. 221-01 ("Force Guiddines"), effective September 20, 2022 (NYSCEF Doc No. 58), is misplaced because both Patrol Ciuide Procedures went into effect after the date of the incident of June 2, 2020. Dcl"cndants' reliance on the Expert ( footnote continued)

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3. Negligent Infliction of Emotional Distress

Plaintiffs r.:laim for emotional distn.::ss is subject lo dismissal as duplicative of his

other claims becnuse such claim alleges no new facts and seeks no distinct damages from

his other claims. See Leonard 1· Reinhardt. 20 AD3d 510 ( 2d Dept 2005 }: I larri11gto11 1·

lltiu, 48 Misc 3d 132(A), 2015 NY Slip Op 51054(U). *² (App Term, 2d Dept, 2d, 11 111

and I 3th Jud Dists 2015): sec also Pere:: i· l"io/encc /11ter1·e11tio11 Program. 116 AD3d ()() 1.

602 (1st Dept 2014). Ir denied 25 NY3d 915 (2015); Salis v Citr o(N'(, 81 Misc 3d

1209(/\). 2023 I'<Y Slip Op 5!302(U), *7 (Sup Ct. Kings County 2023, Abadi. J.).

4. Punitin Damages

"New York docs not n.:cogrnze an independent cause of action for punitive

damages.'' Randi :LI. 1· lung Is. Surgi-Ctr., 46 J\D3d 74, 80 (2d Dept 2007). Thus. the

extant portion of plaintiffs eighth cause of cause for punitive damages as against Sergeant

Reisgerzog is subject to dismissal. However, plaintifrs request for punitive damages in the

ad danmum clause of his complaint as against Sergeant Reisgcrzog is proper and remains

u11.1!Tcctcd by this Decision and Order. See Gershnl(l/1 ,. Ahmod, 15() /\D3d 868, K(})

{2d Dept 2017 ).

;\ ffiduvit of Retired NYPD Captain John Monaglrnn, dated December 13. 2023 (NYSCEF Doc No. 49), is unavuiling because Captain Monaghan based his opinions on the same post-incident \'Crsions of the Patrol (iu1d;; Proccdur;;s and, in any c\·cnt, his opinions arc not probati\!.': b;;cause he had retir;;d fr0m ~YPlJ in 2004. or approximately four years before sergeants and other trained individuals were permitted to carry lasers on their equipment duty belts and. mor;; fundamentally, bccaus;; he fails to an.Ts that he had any trailling in the c.kployrncnt of tas;;rs.

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Footnotes

[1] of 11 [* 1] Background In the evening of Tuesday, June 2, 2020, plaintiff, uge 53, was sitting on a public bench in the Kingsborough Houses vvbcrc he resided when he was permanently blinded in his left eye by a taser dart which Sergeant Reisgerzog deployed in the "cartridge" (or the two-dart) rnode 1 to restrain him tor a warrantless arrest (the incident). 2 The following day, plaintiff was charged with menacing (tvvo counts), disorderly conduct (three counts). obstructing governmental administration, and resisting arrcst.·1 He was later arraigned on charges of disorderly conduct (three counts). resisting arrest, harassment, obstruction of governmental administration, and Administrative-Code violation. Thereafter, all arrnignmclll chan!,cs at!.ainst '--' ~ him were dismissed and scaled ... Subsequently, plaintiff commenced the instant action against the City. Sergeant Reisgerzog, and PO Moussanncf (collectively. defendants) to recover damages for assault/battery, negligent hiring/retention, false arrest, false imprisonment, intentional and 1 ;\c-:ordi11g to 1he NYP!Ys 2020 Use oi' Force Report (at page 3:'i): Tl asers J use rcpl aecah le cartridges co11tai11 ing compressed ni trogcn to propel two small probes that arc attached to the handhc!J unit by insulated conducti\'C wires. The wires transmit short[.] controlled pulses of electricity in Jive-second cycles that stimulate the skeletal muscles of the human body. These short electrical pulses affect the sensory and motor functions of the peripheral nervous system causing temporary incapacitation by preventing coordinated muscular action, without affecting vital organs, Once the live-second cycle is complete, an immediate recovery occurs. [Tasers] collect and store data regarding each use for post-incident review." https://www.nyc ,gov/assets 'nypd/down loadsipdf'usc-of-forcc/usc-of-force-2020-issued-2021-12 .pdf' ( last accessed June 10. 2024), See l\ingshmak }('\\'ish Med Ctr. v Allstate Ins, Co., 61 AD3d 13, 20 (2d Dept 2009) ("mmerial deri,ed from official government wehsiles may be the suhjcct ofjudicial notice"), ~ Sergeant Reisgcrzog deployed his NY PD-issued laser twice in the interval of 17 seconds. laser's Offlinc Report. d;1ted June 4, 2020 (NYSCLF Doc No. 51 ), , PO Mnussanncf prepared the precinct complaint at the direction or Sergeant Rcisgcrzog. See NYPD Omni form System - Complaints, No. 2020-077-002955 (part of NYSCEF Doc No. 54 ). ~ Certiticak' nr Disposition (NYSCEF Doc No, 55), 2

[2] of 11 [* 2] ncgligent inniction or emotional distress, malicious prosecution, ci\ ii-rights violations, and punitive damages (the first through eighth causes ol'action, respectively). After completion of discovery, defendants timely served the instant motion. Before the hearing on defendants' motion, plaintifh1vithdrew (or consented not to contest, as upplicablc): (I) all causes of action as against PO Moussanner who was not present at the time and placc 01· the incident: ::md (2) th1: causes of action (or portions tl1ereo[) as ng:1inst the City and Sergeant Rcisgcrzog sounding in negligcnt hiring/retention, intentimrnl (but not negligent) infliction of emotional distress, malicious prosecution, civil-rights violations. and punitive damages (the latter as against the City only) (the second. fifth, sixth, seventh. and eighth causes of action, rcspcctivcly). 5 On May 8, 2024. the Court heard oral argument and reserved decision on the extant portions of defendants' motion which is for dismissal of plaintiff's causes of a1:tion sounding in: ( 1) false arrest/imprisonment; (2) assault/battery; (3) neg! igent in tliction or emotional distress; and (4) punitive damages (the latter as directed against Sergeant Rcisgerzog only) (third/fourth, first rilth. and eighth causes of action, rcspcctivcly}.<' Standard of Rcvic,.,, "Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a mattcr of law." Andre v 'Plaintiff's counsel's af!frma1ion in opposition, d;1tcd \'larch 6, 202-l (\iYSCJ·T Doc '.\lo. 61 ), ~~• 8. -l7. 1 'lo facilitate 1hc llow ol' narrative, the Court rc,1rra11gcd plaintiffs cxtnnt caus..:s or action. Thc focts underlying this action arc recounted at length in the parties' papers (as supplemented by the body-camera c:uni:ra footage at NYSCEF Doc Nos. 52-5} and 67). familiarity with which is assumed, and \\ill not he ri:pcated here. 3 [* 3] 3 of 11

[5] of 11 [* 5] parties' conflicting pretrial testimony'1 - as to whether (or not) a reasonable police officer could interpret that, (lt the time and place of the incident, the unarmed plaintiff: (I) was menacing any NYPD officers in any way and/or was engaged in any type or disorderly conduct, consitkring that at (and shortly before) the time of the incident: (a) he was sitting alone on a public bench outside his apartment complex: (b) he was holding nothing in his hands: (c) lie had no weapons or any kind on his body or anywhere \Vi thin his reach, and no weapons of any kind were subsequently found; and (d) he was dressed according to the weather; and (2) \Vas resisting arrest and/or obstructing governmental administration in any wuy, considering that he foiled to promptly obey the officers' command to place his hands behind his back, as soon as one of the laser darts irnpakd the globe or his kll eyc. 111 Whether Sergeant Reisgerzog's (and his NYPD team"s) evaluation of probable cause for plaintiff's arrest (and ensuing imprisonment) was objectively reasonable precludes an aw,ird of summary judgment in dei'cndants' favor on the ground of quali ficd immunity. Sec f-!o/Jand, 90 AD3d at 845-846; Oicdcrich 1· i\\ack 1/osp., 49 AD3d 49 L 493 (2d Dept 2008), h· dismissed in part, de11fr,d in part 1 l I'\Y3d 862 (2008). Further. the City 1 'See ge11emlh· Sergeant Rcisgcrzog's and nonrrnrty PO Craig McGrath's EBT transcripts (NYSCEF Doc Nos. 44 and 47): Plaintilrs Gcncrnl Municipal L1w ~ 50-c he,iring and EBT transcripts (NYSCEF Doc Nos. 37 and 43 ). 111 Plaintiff could not describe how the tascr shucked l11n1e S,'e Plaintilrs GML ~ 50-h hearing tr ar page 33. lines 2-9 l "l l]t ":-; bard 10 tkscribe whal l never felt anything [previously]. It was pain, within my \\ hole head. it was a burn. It's hard to describe."): page 33. line 11 Cl never want to feel it again.") (I\YSCFF Doc No. 37); Plaintiff's EBT tr al page 37. lines 19-20 ("I just remember getting the air knocked nut of me .... "): page 39. lines 17-19 ("I just felt, I do not remember, I rnuldn 't breathe, I got the air knocked oul ofme."): page 40. line 10 ("It's hard to describe what I !'cit") ('.'JYSCEr Doc No. 43). 6 [* 6] 6 of 11

[9] of 11 [* 9] The Corn1 has considered the parties' remaining contentions and found them either academic or without merit in light of its determination. J\ll relief not specifically granted ben:in is denied. Conclusion Accordingly, it is ORDERED that the branch of defendants" motion which is for an order, pursuant to CPLR ~ T2 l 2(b ), for summary judgment is grantee! to !lie extrn! that: ( l) all of plainti trs causes or action against PO Moussanncf arc dismissed: (2) plaintiffs second cause of act ion for negligent hiring and retention. fifth cause of act ion for intentional and crnotiona I infliction of emotional distress, sixth cmtsc or action lor malicious prosecution, seventh cause of action for civil-rights violations, and eighth cause or action for punitive damages arc e,1ch dismissed against the City nnd Sergeant Rcisgerzog: and (3) plaintiff's request for "exemplary" damages in the "Wherefore" clause as against PO Moussannef and the CiLy (but not as against Sergeant Reisgerzog) is stricken; and the remainder of Lhis branch of dcfcmlants' motion is denied; and it is further ORDERED that the remaining branch of defendants' motion which is for order. pursu,111t to CPLR ~ 3211 (a)(7 ). dismissing the complaint It)!' failure to state a claim is denied us dcademic; and it is further ORDERED that for the avoidance of douht, this action shall proceed as against the City and Sergeant Reisgcrzog on plaintiffs firsl, third, anJ rourth causes or action which arc fur commun-lmv assault/battery, false arrest, and false imprisonment, respectively, as IO

[10] of 11 [* 10] pleaded in his complaint. dati:d Arri] 30. 202 l and as verified by him on May 4. 2021: and it is further ORDERED that the action is severed and continued against the remaining defendants. and the caption is amended to read in its entirety as follows: KENNET! I BACOT!·:. Plat11tilT, Jndcx No.: 510559/2021 -agai11s1- THE CITY OF NEW YORK. POLICE SERGEANT JASON REISGERZOC; - Shield No 4576. and JOI I'-/ DOES - Police Officers As Y ct Unidcntif'icd. Dci'i:ndanls. ; and it is further ORDERED that plaintifrs counsel is directed to electronically serve a copy o!' this Decision and Order on the Corporation Counsel and to ekctronical\y serve an affidavit of service thereof with the Kings County Clerk; and it is Curthcr ORDERED that the parties arc r.:rnindcd of their next scheduled Yirtual appcaranci:: lor a pre-trial conCcrcnce in the City Trial Readiness Part on July I, 2024 at 10:30 a.m. The foregoing constitutes the Decision and Order of this Court. ENTER. /4__) / HON. GINA J\BJ\DI J. S. C. 11 [* 11] 11 of 11