### Vasquez v City of New York 2024 NY Slip Op 31549(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 152841/2014 Judge: Hasa A. Kingo 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.NYSCEF DOC. NO. 104 INDEX NO. 152841/2014 RECEIVED NYSCEF: 05/01/2024


### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY
PRESENT: HON. HASA A. KINGO Justice

---------------------------------------------------------------------------------X

XAVIER VASQUEZ, Plaintiff,

- V
- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, MICHAEL RAMA, LAZARO SUAREZVILLAMIL, ADAM LABOY, JOHN ENTENMANN, POLICEOFFICER HERNANDEZ Defendant.

---------------------------------------------------------------------------------X PART

INDEX NO.

MOTION DATE 05M

152841/2014 09/19/2023, 09/29/2023
MOTION SEQ. NO.

__ 0_0_2_0_0_3

__

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 84, 85, 86, 87, 88, 89, 90, 91, 92, 97, 98, 99
were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 003) 77, 78, 79, 80, 81, 82, 83, 93, 94, 95, 96, 100, 101, 102
were read on this motion to/for DISMISS Upon the foregoing documents, defendant the City ofNew York (the "City") moves for summary judgment and to dismiss plaintiff's claims (Motion Seq. 002) and to dismiss the complaint against the New York City Police Department (the "NYPD") and the individually named defendants (Motion Seq. 003). The motions arejoinedfor the purpose ofthis decision, and both are granted. 

### BACKGROUND This civilrights action interposes seven causes ofactionin connectionwith PlaintiffXavier Vasquez's ("Plaintiff') arrest on October 27, 2011 for a rape that occurred on January 1, 2011. Prior to the night in question, on September 11, 2010, the victim was raped in her residence by a man who respondedto an internet advertisement she placed for escort services (NYSCEF DocNo. 87, Gorman affirmation in opp ,i 3; NYSCEF Doc No. 69, Rama deposition transcript at 26-27; NYSCEF Doc No. 72 at 40, police records). The man arrived at the victim's apartment late at night, stole her money and laptop, and raped her at gunpoint in a brutal sexual assault (Gorman affirmation in opp ,i 3). She reported the attack to the police, who collected evidence, including a condomusedbythe perpetrator (id. ,i 5). The victim was treated at Metropolitan Hospital after the assault and a sexual assault evidence collection kit was completed (Statement ofMaterial Facts ,i 10). The contents ofthe evidence collection kit and a sample from the condom were sent to the

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Office ofthe ChiefMedical Examiner for analysis ("OCME") (id.). The DNA from the condom did notmatch anyone in the OCME database (id. 5). During the NYPD investigation that followed, the NYPD obtained subscriber information for the cell phone numberthe perpetratorusedto contact the victim (NYSCEF Doc. No. 72 at 54). The cellularprovider was unable to provide a date ofbirth ofthe phone subscriber or advise how long the number was in service (id.). Further investigation revealed that the address provided for the subscriber ofthe number did not exist (NYSCEF Doc No. 74, Recommendation for Dismissal at 10). Nevertheless, NYPD detectives continued to trace the location ofthe cell phone number and pursued video surveillance footage from locations where the cell phone was used (NYSCEF Doc No. 72, police records at 80, 130). The detectives observed one man fitting the description of the perpetrator on the surveillance video, but the victim did not identify him in a photo array (id. at 80). The man was not Plaintiff(id. at 88). On or about January 1, 2011, Plaintiff and his wife (then fiancee) wanted to engage an escort and answered an online advertisement that the victim placed online for escort services (NYSCEF Doc No. 63, Statement of Material Facts ,i 5; NYSCEF Doc No. 91, Response to Statement ofMaterial Facts ,i 5). Plaintiffand his wife then wentto the victim's home to meet her (Response to Statement ofMaterial Facts ,i 6). Plaintifftestified at a deposition that he and his wife stayed at the victim'sresidence for about five minutes, during which time they flirted and the three ofthemkissed (NYSCEF Doc No. 68, Plaintiff's deposition at 60-62). After approximately five minutes, he and his wife left at his wife's request, and they had no further contact with the victim (id. at 61-62, 65). Later the same evening, the victim received a call from a man interested in her escort services (Statement ofMaterial Facts ,i 7). The man later came to herresidence (id.). Shortly after the man arrived, the victimrealized itwas the sameman thathadrapedher on September 11, 2010 (NYSCEF Doc No. 69, Rama deposition transcript at 31; NYSCEF Doc No. 72 at 90). The man again raped her at gunpoint in a second assault (id.). During the attack, the victim recovered one ofthe perpetrator's pubic hairs, which she gave to defendant DetectiveMichael Rama ("Detective Rama") after the assault (NYSCEF Doc No. 69, Rama deposition transcript at 32; NYSCEF Doc No. 72 at 102). The victim reported the assault to the NYPD, who again collected evidence and investigated the crime. A police report taken after the assault indicates that she described the perpetrator as a Hispanic male in his late 20s or early 30s between 5'8" and 5'10" wearing a tan orbrownjacket, greybeanie, and ofa slenderbuild (NYSCEF DocNo. 72 at 103). Thereport also indicates that the victim told the police that the perpetrator had kissed her on the neck during the assault (NYSCEF Doc No. 72 at 83; Statement ofMaterial Facts ,i 9), and that she had been with her family and did not have contact with any other men for a week prior to the assault (NYSCEF Doc No. 72 at 83, 103). After the second assault, the victim was again treated at Metropolitan Hospital and a sexual assault evidence collection kit was completed, which was submitted to the OCME for analysis (Statement ofMaterial Facts 

### ,i 10). The kit completed after the second attack included a swab ofthe victim's neck (id. 

### ,i 11). The OCME found DNA from at least two people on thevictim'sneck, including "onemale and anotherperson" (NYSCEF DocNo. 72 at 192). One ofthese profiles matched Plaintiff's DNA profile (Statement ofMaterial Facts ,i 12).

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After the assault, NYPD detectives again traced the cell phone that the perpetratorused to contact the victim (NYSCEF Doc No. 69 at 86-97, Rama deposition transcript; NYSCEF Doc No. 72 at 54). Callrecords for thephonenumberindicate itwas usedto call several adult entertainment services, and was associated with a subscriber with the initials "M.S." (NYSCEF Doc No. 72 at 54, 56). NYPD detectives also pursued video surveillance footage from the areas where the cell phone was used, butwereunable to obtain clearvideo footage (NYSCEF DocNo. 69 at 88, Rama deposition transcript; NYSCEF Doc No. 72 at 130). On October 27, 2011, NYPD officers visited Plaintiff at his home and subsequently interviewedhim at apolice station. Upon meeting the officers, Plaintiffinitially gave a fake name (Response to Statement ofMaterial Facts 

### ,i 14) and signed a Miranda Warning with the name "Chris Perez" (NYSCEF DocNo. 116). Plaintifflater told the officers his real name (Response to Statement ofMaterial Facts 

### ,i 14). Atthe precinct, Plaintiffwas shown aphotograph ofthe victim, and he denied knowing or recognizing her (Statement of Material Facts ,i 16; Response to Statement ofMaterial Facts ,i 16). Plaintiffwas arrested for the rape after the interview (Statement ofMaterial Facts 

### ,i 1 ). He was arraigned the next day and charged with rape in the first degree, robberyin the first degree, and criminal sexual act in the first degree (id. ,i 18). Atthe arraignment, the Assistant District Attorney (the "ADA") advised the court that, while the victim identified a different individual as the perpetrator in a lineup, the DNA evidence obtained from the victim's neckmatchedPlaintiffsDNA(id. ,i 19). On November2, 2011, Plaintiffwas indicted and charged with one count ofrape in the first degree, two counts ofcriminal sexual act in the first degree, one count of sexual abuse in the first degree, and one count ofrobbery in the first degree (id. ,i 21). Plaintiffremained incarcerated until December 31, 2012, when he was released after the DNA results from the hair didnotmatchhis DNA (Gorman affirmation in opp ,i 32). On April 11, 2013, the ADA moved to dismiss the charges against Plaintiffbased on the results ofthe DNA testing on the hair obtained by the victim and the victim's inconsistent statement about where it was recovered, among other reasons (Statement ofMaterial Facts ,i 22). Plaintifffiled a notice ofclaim on April 25, 2013, and commenced this action on March 26, 2014 byelectronically filing the Summons and Complaint. The complaint asserts seven causes ofaction, ostensibly for (1) deprivation ofsubstantive due process rights, including deprivation of liberty, (2) federal false arrest and imprisonment, (3) civil rights violations pursuant to 42 U.S.C. § 1983, (4) state false arrest and imprisonment, (5) respondent superior, (6) failure to train, and (7) failure to supervise. The City served an answer on behalfofitselfand the New York City Police Departmenton or aboutJune 9, 2014. Bytwo motions, the Citynow moves for summaryjudgment (Motion Seq. 002) and to dismiss the complaint against the individual defendants (Motion Seq. 003). Plaintiffopposes both motions. DISCUSSION A. Standard ofReview A motion for summary judgment "shall be granted if, upon all the papers and proofs submitted, the cause ofaction or defense shall be established sufficiently to warrant the court as a matter oflaw in directingjudgment in favor ofany party" (CPLR § 3212[b]). "The proponent of a motion for summaryjudgment must demonstrate that there are no material issues of fact in

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dispute, and that it is entitled tojudgment as a matter oflaw" (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept2007]). The movant'sburden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (William J Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013][intemal quotation marks and citation omitted]). Upon aproffer ofevidence establishing aprima facie case bythe movant, the party opposing amotion for summaryjudgmentbears the burden ofproducing evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "A motion for summaryjudgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues ofcredibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010][intemal quotation marks and citation omitted]). Where a defendant moves to dismiss pursuant to CPLR § 32ll(a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994][citations omitted]). Ambiguous allegations must be resolved in the plaintiff's favor (see JF CapitalAdvisors, LLCv Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). "The motion must be denied if from the pleadings' four comers factual allegations are discerned which taken togethermanifest any cause ofaction cognizable at law" (511 West 232nd Owners Corp. vJenniferRealty Co., 98 NY2d 144, 152 [2002][intemal citations omitted]). "However, when evidence is submitted on a motion to dismiss, we look to whether plaintiff has a cause of action, rather than whether it is pleaded" (Braun v Lewis, 99 AD3d 574 [1st Dept 2012]; citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). B. Motion Sequence 002
In Motion Seq. 002, the City moves for summaryjudgment (1) to dismiss Plaintiff's False Arrest and Imprisonment, Respondent Superior, Negligent Training and Supervision, and Negligent Review claims for failing to file a timely notice of claim, (2) to dismiss Plaintiff's negligence-based claims as time-barred, (3) for summaryjudgment because there was probable cause for Plaintiff's arrest and prosecution, (4) to dismiss Plaintiff's claims under42 U.S.C. 1983, (5) to dismiss the complaint as against the NYPD as an improper party because it is not a suable entity. As athresholdmatter, Plaintiffargues thatthe motion shouldbe deniedas untimelybecause the case scheduling order entered on May 7, 2018 provides that motions for summaryjudgment "[s]hall be filed no laterthan 60 days after filing ofthe Note oflssueunless otherwise directedby the court" (NYSCEF Doc No. 9). However, the court's part rules in effect when the Plaintifffiled the Note ofIssue on May 24, 2023, directed that "[a]ll summaryjudgment motions mustbe filed no later than 120 days after filing the Note of Issue" (NYSCEF Doc No. 71). Under these circumstances, the court's part rules supersede the case scheduling order. Because Plaintifffiled the Note of Issue on May 24, 2023 (NYSCEF Doc No. 57), the deadline to file motions for summaryjudgment was 120 days later, on September 21, 2023. Therefore, defendants' motion filed on September 19, 2023 was timely.

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Additionally, the City's motion to dismiss the complaint as against the NYPD is granted because the NYPD is a non-suable entity pursuant to Chapter 17, section 396 ofthe New York City Charter (Troy v City of New York, 160 AD3d 410,411 [1st Dept 2018]).

a. False Arrest and False Imprisonment Plaintiffs second cause ofaction interposes a claim for false arrest and false imprisonment under federal law, while the fourth cause ofaction interposes a claim for false arrest under state law. 1 The City moves to dismiss both causes ofaction on the grounds that they are time-barred and because there was probable cause for Plaintiffs arrest. Plaintiffcontends thathis federal false arrest and false imprisonmentclaims are timely andtherewasnotprobable causeto arrestPlaintiff. Plaintiffargues, inter alia, that there was not probable cause for his arrest because his DNA did notmatchthat obtainedfrom the first attack, the cell phonerecords andvideo surveillance acquired by the police did not implicate him, and because the victim did not identify him in a lineup or photo array. Pursuant to General Municipal Law ("GML") § 50-i, no tort action or special proceeding shall be prosecuted against the City absent timely service ofanotice ofclaim (General Municipal Law§ 50-i[l]). The notice ofclaim must be filed within 90 days after the claim accrues (General Municipal Law § 50-e[l][a]). A timely notice of claim is a condition precedent to the commencement ofany tort action and the statute oflimitations is one year and ninety days for all such claims, including false arrest (General Municipal Law§ 50-i[l]; CPLR § 217-a; Campbell v City of New York, 4NY3d 200,203 [1stDept2005]["This Courthas consistentlytreatedthe yearand-90-dayprovision contained in section 50-i as a statute oflimitations"]). New York common law claims for false arrest and imprisonment accrue on the date the plaintiff is released from custody (McQueen v City of New York, 209 AD3d 469,470 [1st Dept 2022]). Any application to file a late or amended notice of claim must be made within the appliable statute oflimitations period (Pierson v New York, 56 NY2d 950, 955-956 [1982]; Guzman v City of New York, 190 AD3d 454, 455 [1st Dept 2021]; Beauvoir v City of New York, 176 AD3d 437, 437 ["the oneyear-and-90-day statute oflimitations is abarto all the state claims

... we lack any discretion to allow expired claims to proceed thereafter" [1st Dept 2019]). Here, Plaintiff was released from custody on December 31, 2012, and, therefore, the deadline to file the notice ofclaimwas March 31, 2013. As such, the notice ofclaim filed on April 25, 2013 was untimely. Whereas the statute oflimitation has now long past, the court lacks any discretion to allow alatenotice ofclaimor otherwise allow the expiredclaimto proceed(Beauvoir, 176 AD3d at 437, supra). The notice ofclaimrequirement cannot, as Plaintiffsuggests, be waived or precluded (id.). Accordingly, the state law cause ofaction for false arrest is untimely and must be dismissed. Notably, the notice ofclaim requirements are not applicable to federal law claims (Wanczowski v City of New York, 186 AD2d 397, 397 [1st Dept 1992], citingFelder v Casey, 487 US 131 [1988]). False arrest and false imprisonment claims brought pursuant to 42 USC§ 1983 accrue "oncethe victim becomesheldpursuantto [legal] process -when, for example, heis bound over by a magistrate or arraigned on charges" (id.). The statute oflimitations for the false arrest

1 "InNew York, the tort offalse arrest is synonymous withthat offalse imprisonment" (Posr vDoherty, 944 F2d 91, 96 [2d Cir 1991]).

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claims under 42 U.S.C. § 1983 is three years (id.). Therefore, Plaintiffs federal false arrest claim is timely. The elements offalse arrest are "substantially the same" under state and federal law and requirethe same analysis (Crooks v Cityof New York, 189AD3d771, 771 [2dDept2020]). "Under the common law, a plaintiffmaybring suit for false arrest and imprisonment against one who has unlawfully robbed the plaintiff of [their] 'freedom from restraint of movement"' (De Lourdes Torres vJones, 26 NY3d 742, 759 [2016], quotingBroughton v State of New York, 37 NY2d451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975][other citation omitted]). To prevail on a cause of action for false arrest or imprisonment, a plaintiff must demonstrate (1) thatthe defendant intendedto confine the plaintiff, (2) the plaintiffwas conscious ofthe confinement, (3) the plaintiffdid not consent to the confinement, and (4) the confinement was notprivileged (DeLourdes Torres, 26 NY3d 742, 759 [2016]). "Forpurposes ofthe privilege element ofa false arrest and imprisonment claim, an act ofconfinement is privileged ifit stems from a lawful arrest supportedby probable cause" (De Lourdes Torres, 26 NY3d at 759 [citations omitted];Diop v City of New York, 50 FSupp3d411,418 [SDNY 2014]["Becausethe existence of probable cause makes a confinement privileged, it is "a complete defense to an action for false arrest, whether that action is broughtunder state law orunder § 1983"]). "Probable cause exists when an arresting officerhas knowledge orreasonably trustworthy information offacts and circumstances that are sufficientto warrant aperson ofreasonable caution in thebeliefthatthe personto be arrestedhas committedoris committing a crime" (Weyant v Okst, 101 F3d 845, 852 [2d Cir 1996]). "The test for probable cause is an objective one and "depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time ofthe arrest" (Diop, 50 FSupp3d at 419). "Whether or not probable cause existed may be determinable as a matter oflaw ifthere is no dispute as to the pertinent events and the knowledge of the arresting officers" (id., citing Weyant, IOI F3d at 852). "Even if facts are disputed, a defendantmay still be entitledto summaryjudgmenton a § 1983 false arrest claimifthe plaintiffs version ofevents establishes the existence ofprobable cause to arrest" (Bonds v City of New York, 2014 WL 2440542, *4 [EDNY, May 30, 2014, No. 12-CV-1772 (ARR/MDG)]). Consideringthe totality ofthe circumstances andinformationknown the NYPD atthe time ofPlaintiffs arrest, it is the conclusion ofthis court that the NYPD had probable cause to arrest Plaintiff. Plaintiff matched the victim's description of the perpetrator (NYSCEF Doc No. 72, policereport at 103), and his DNAwas found onthe victim'sneck after she told the police officers thattherapisthadhadkissedheronthe neckduringthe attack (NYSCEF DocNo. 72, policereport at 83; Statement ofMaterial Facts ,i 9). The victim also told the police that she hadbeen with her family with no contact to any other males for a weekprior to the attack, so they had no reason to suspect there was a second man present on the night ofthe attack (NYSCEF Doc No. 72, police report at 83, 103). When questioned by the police, Plaintiff provided a fake name and denied knowledge of the victim, despite the DNA match that placed him at her home (Response to Statement ofMaterial Facts 

### ,i 14; NYSCEF Doc No. 116). He offered no explanation regarding why he was in herhome orhow his DNA came to be on her neck on the night ofthe attack (id.). Underthese circumstances, itwasreasonable for themto concludethatPlaintiffwastheperpetrator and the NYPD had probable cause to arrest Plaintiff(see Santos v City of New York, 161 AD3d

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509,509 [1st Dept 2018]; Thompson v City of New York, 2 FSupp 3d 374 [EDNY 2014], ajfd, 592 F Appx 36 [2d Cir 2015]). "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest" (Ricciuti vNYC. TransitAuthority, 124 F3d 123, 128 [2d Cir 1997]). Although there was evidence uncovered in the investigation that did not implicate Plaintiff, none of the evidence availablepriorto his arrestwas exculpatory (seePeople v Valles, 62 NY2d 36, 38 [1984]; Celestin v City of New York, 581 FSupp2d 420,432 [EDNY 2008]), and did not negate probable cause (id.; seealso Harig v City of Buffalo, 2023 WL 3579367 [2d Cir, May 22, 2023, No. 22-30- CV]). The victim did not identify Plaintiffin a lineup orphoto array, but she also did not identify any other viable suspects. 2 Although Plaintiff's DNA did not match the first attack, the victim couldhavebeenmistakenregardingthe identityofthe firstperpetrator, anditwasnotunreasonable for the NYPD to rely on the DNA evidence that placed the Plaintiff at the scene ofthe second assault. "[P]robable cause does not require absolute certainty" (Panetta v Crowley, 460 F3d 388, 395 [2d Cir 2006]). It is a "fluid concept--tuming on the assessment ofprobabilities in particular facts" (id.). Notably, the day that the OCME reported his DNA did not match the sample taken from the second assault, Plaintiff was released from confinement and the ADA subsequently moved to dismiss the charges against him. The court acknowledges that Plaintiff's confinement was undoubtedly a painful and difficult experience for him, and the delays experienced in his criminal case were an unfortunate byproduct ofan imperfect criminaljustice system, butthe arrest was nonetheless privileged. Therefore, the state false arrest claim is dismissed as untimely and privileged, and the federal false arrest cause ofaction is dismissed as privileged. b. Malicious Prosecution The City contends that Plaintiffhas not pled a cause ofaction for malicious prosecution, butnevertheless seeks to dismiss the cause ofaction to the extentthat oneispled. Atoral argument, Plaintiff's counsel advised the court that Plaintiff intended to interpose a cause of action for malicious prosecution by virtue ofthe first cause ofaction and made an oral application for leave to amend to correct any pleading deficiencies. Plaintiff's first cause ofaction alleges, inter alia, that the defendants "actedwith actual malice toward Plaintiffandwith willful wanton indifference to and deliberate disregardforthe statutory and constitutionalrights ofthe Plaintiff," which actions "constituted unreasonable deprivation ofliberty without due process oflaw" (NYSCEF DocNo. 1, complaint 

### ,i,i 45-46). UnderNew York law, a complaint mustbe "sufficiently particularto give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements ofeach cause ofaction" (CPLR § 3013). Pleadings must be liberally construed and even a poorly drafted complaint will not be dismissed ifthe "facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994][citations omitted]). Pursuant to CPLR Rule 3025, a party may amend or supplement their pleading "at any time by leave ofcourt or by stipulation ofall parties" (CPLR 3025 [a]). "Leave shall be freely given upon such terms as maybejust" (id.). "[I]n the absence of

2 Plaintiffsuggests that Michael Pena, a former NYPD officer who was arrested and convicted for anumber ofrapes, may be the perpetrator ofboth assaults on the victim, but the record indicates that the NYPD investigated Pena and eliminated him as a suspect (NYSCEF Doc No. 6, Det. Rama deposition Transcript at 80, 86). Notably, the victim also did not pick Pena from aphoto array (NYSCEF Doc No. 72, police report at 83, 187).

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prejudice or surprise resulting directly from the delay in seeking leave, applications to amend are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" 

### (Favourite Ltd. v Cico, 208 AD3d 99, 108 [1st Dept 2022]). Thus, Plaintiffs oral application to amend may onlybe grantedupon a showing that Plaintiffhas a cognizable claim for malicious prosecution.3
To recover damages for malicious prosecution under state law, a plaintiffmust establish (1) that a criminal proceeding was initiated against them, (2) it terminated favorably to plaintiff, (3) lacked ofprobable cause, and (4) wasbrought out ofactual malice 

### (Morantv City of New York, 95 AD 3d 612 [1st Dept 2012], quoting 

### Colon v City of New York, 60 NY2d 78, 82 [1983]; 

### Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). To prevail on a federal claim brought under 42 U.S.C. § 1983, a plaintiff must show a violation of their rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law 

### (Manganiello v City of New York, 612 F3d 149, 161 [2d Cir 2010]). The existence ofprobable cause for the prosecution constitutes a complete defense to a claim of malicious prosecution 

### (Lawson v City of New York, 83 AD 3d 609 [1st Dept 2011]). For the purposes of a malicious prosecution claim, a Grand Jury indictment creates a presumption ofprobable cause for the criminal proceeding (

### Colon v City of New York, 60 NY2d 78, 82 [1983]). This rule is "founded upon the premise that the Grand Jury actsjudicially and it may be presumed that it has acted regularly" 

### (id.). The complaint must allege specific facts to overcome the presumption 

### (id.; see also McQueen v City of New York, 209 AD3d 469, 470-471 [1st Dept 2022]["Where there is an indictment, there is a presumption ofprobable cause and the complaint must therefore allege specific facts to overcome the effect ofthe indictment"][intemal citations and quotations omitted]). New York law does not "permit the presumption to be overcome by any evidence tending to show the absence ofprobable cause," and "the trial court maynotweigh the evidenceupon which the police acted orwhich was before the GrandJury after the indictmenthas issued" (

### Colon, 60 NY2d 78 at 83). Rather, to succeed on a cause ofaction for malicious prosecution after an indictment, a plaintiff "must establish that the indictment was producedby fraud, perjury, the suppression ofevidence or otherpolice conductundertaken in bad faith" 

### (id.). Plaintiffalleges that the police "ignored" evidence thathe was not the perpetrator, but there is no evidence in the record that indicates the police withheld information from the District Attorneys or engaged in any other improprieties in connection with the indictment. This is insufficient to overcome the presumption ofprobable cause for the criminal proceeding. "Moreover, even ifaplaintiffrebuts the presumption ofprobable cause, he or she still must establish as ajury issue that the defendant acted with malice, i.e., that the defendant must have

3 Assuming arguendo, that the first cause ofaction pleads a viable cause ofaction for malicious prosecution, such claim would be timely. The statute oflimitations for a state law cause ofaction for malicious prosecution against the City accrues upon favorable termination ofthe underlying criminal proceeding and runs for one year and 90 days accrued (General Municipal Law§ 50-i[l][c]; CPLR § 217-a). The underlying criminal proceeding was dismissed on April 11, 2013, he filed his notice ofclaim on April 25, 2013, and commencedthis action on March 26, 2014, which satisfies the notice ofclaim requirement and is timely. Federal claims are not subjectto the notice ofclaim requirement (Felder v Casey, 487 US 131 [1988]; Wanczowski v City of New York, 186 AD2d 397, 397 [lst Dept 1992] [compliance with notice ofclaim requirements is not aprerequisite to recovery for violation ofcivil rights based on42 U.S.C. § 1983]).

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commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends ofjustice served" (Roberts v City of New York, 171 AD3d 139, 150 [1st Dept], ajfd, 34 NY3d 991 [2019]; see also Manganiello v City of New York, 612 F3d at 163]["Malice maybe shown byproving that the prosecution complained ofwas undertaken from improper or wrongful motives, or in reckless disregard ofthe rights ofthe plaintiff."]). Plaintiff also does not make any factual allegations that the officers acted with malice, nor does the record support a finding that the police acted with malice (McQueen, 209 AD3d at 471 ["Because the complaintonlyconclusoryallegesthattheprosecution ofplaintiffwas commencedandmaintained with malice, it fails to state a claim for malicious prosecution"]).

c. RespondeatSuperior Plaintiff's fifth cause ofaction seeks relieffrom the City and the NYPD under the theory ofrespondeat superior. The City moves to dismiss the cause ofaction on the grounds that it is a "negligence-based claim" that is time barred under General Municipal Law § 50-i(l). The City contends that the cause ofaction accrued on the date ofarrest, October 27, 2011, and the statute oflimitations expired on January 25, 2013, approximately two months prior to commencement of the action on March 26, 2014. Plaintiffresponds simply that the fifth cause of action "is not a negligence claim" and asserts it is timely, but offers no further information. Substantively, the complaint alleges only that "[a]tall timespertinenthereto, DOEwas acting within the scope ofhis employment as an officer ofthe New York Police Department and the City ofNew York," and "[t]he City ofNew York and New York City Police Department are each liable for compensatory damages under the doctrine ofrespondeat superior for the intentional torts that DOE committed within the scope of his employment" (NYSCEF Doc No. 1, complaint 

### ,i,i 64-65). No "Doe" defendants have been identified or added as parties to the action. The statute oflimitations for Plaintiff's fifth cause ofaction under a theory ofrespondeat superior under state law is one year and ninety days from the date of arrest for the false arrest claim and from the date of favorable resolution of the criminal proceeding for malicious prosecution (General Municipal Law § 50-e, 50-i). 4 Therefore, the state law cause of action is untimely as a matter oflaw. To the extent that Plaintiffseeks to pursue the fifth cause ofaction as a federal claimunder 42 U.S.C. § 1983, "amunicipality is not liable under 42 USC§ 1983 for an injury inflicted solely by its employees or agents
... or solely upon the doctrine ofrespondeat superior or vicarious liability (Holland, 90 AD3d at 847, supra). Thus, the City is entitled to summaryjudgmentdismissing the fifth cause ofaction. d. Monell and 42 U.S.C. § 1983 Although not explicitly pled as such, Plaintiffasserts that the sixth and seventh causes of action are "substantively"Monell claims under 42 U.S.C. § 1983 (NYSCEF Doc No. 87, Gorman aff in opposition 

### ,i 67). The sixth cause of action alleges that the City and NYPD's "failure to provide adequate training and supervision to its police officers constitutes a willful and wanton indifference and deliberate disregard for human life and the rights ofprivate citizens, including Plaintiff' (NYSCEF DocNo. 1, complaint

### ,i 67). The seventh cause ofaction alleges thatthe City

4 The court interprets the reference to "intentionaltorts" inthe fifth cause ofactionto meanfalse arrest and malicious prosecution-the only intentional torts alleged in the complaint.

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and the NYPD "maintained a system of review of police conduct which was so untimely and cursory that itwas ineffective and permitted and tolerated the unreasonable detention ofPlaintiff' and the "wonton indifference to and deliberate disregard for the statutory and constitutional rights ofPlaintiff' (id. 

### ,i,i 69-70). Under42 U.S.C. § 1983, local governments are onlyresponsible for "theirown illegal acts" (Connick v Thompson, 563 US 51, 60 [2011]). Liability may only be imposed on the City for its own alleged violations of a plaintiffs constitutional rights by establishing a direct causal link between a municipal policy or custom and the alleged constitutional deprivation" (Holland, 90 AD3d at 847, citing Canton vHarris, 489 US 378,385 [1989]; Connick, 563 US 51 [2011];Monell vNew York City Dept. of Social Servs., 436 US 658, 694 [1978]). To satisfy the official policy or custom element, a plaintiffmay allege the existence of "(1) a formal policy, (2) action taken or decisions made by policymakers that caused the violation ofplaintiffs rights, (3) a practice so persistent and widespread that it constitutes a 'custom or usage,' or (4) a failure to properly train or supervise municipal employees" (Boddie v City of New York, 2016 WL 1466555, *4 [SDNY April 13, 2016, No. 1:15-CV-4275-GHW], citing Moray v City ofYonkers, 924 FSupp 8, 12 [SDNY 1996]; see also Holland, 90 AD3d at 847, supra ["The plaintiffmust show that the action that is alleged to be unconstitutional either implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgatedbythat body's officers orhas occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force oflaw"][internal quote omitted]). The sixth and seventh causes ofaction apparently fall under the fourth category, failure to train or supervise. Under limited circumstances, proof of a municipality's failure to train or supervisemaybethe basis for liabilityunder§ 1983 (Holland, 90 AD3d at 848, supra). "However, only where a municipality's failure to train its employees in a relevant respect evidences a deliberate indifference to the rights ofits inhabitants can such a shortcoming be properly thought of as a city policy or custom that is actionable under§ 1983" (id. [internal quotes omitted]; see also Felix v City ofNew York, 344 FSupp3d 644, 653 [SDNY 2018]). "To allege deliberate indifference in the context ofa failure-to-train claim, a plaintiffmust plead facts giving rise to a plausible inference that (1) the municipality knows 'to a moral certainty' that its employees will confront a given situation, (2) eitherthe situationpresents the employees with a difficult choice of the sort that training will make less difficult, or there is a history ofemployees mishandling the situation, and (3) the wrong choice by the employee will frequently cause a constitutional deprivation" (Boddie, 2016WL 1466555, *4; seealsoHolland, 90 AD3d at 847, supra). "Apattern ofsimilar constitutional violations byuntrained employees is ordinarilynecessary to demonstrate deliberate indifference for purposes offailure to train" (Boddie, 2016 WL 1466555 at *4, supra). To establish liability under a theory of failure to train, a plaintiff must "identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation" (AmnestyAm. v Town ofW Hartford, 361 F3d 113, 130 [2d Cir 2004][internal quotes omitted], citing City ofCanton, 489 US 378, 390-391 [1989]). "Theelements ofan identifiedtraining deficiency and aclose causal relationship, which together require the plaintiffs to prove that the deprivation occurred as the result ofamunicipal policy rather than as a result ofisolated misconduct by a single actor, ensure that a failure to train theory does not collapse into respondeatsuperiorliability" (id.).

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The conclusory allegations set forth in Plaintiff's sixth and seventh causes of action are insufficientto state a cause ofaction for failure to train or supervise (see Felix v City of New York, 344 FSupp3d 644, 653 [SDNY 2018]["boilerplate assertions ofmunicipal policy are insufficient to state a claim for Monell liability

... [f]acts supporting the policy's existence must be pled"]). Plaintiffdoes not identify any specific polices, regulations, or deficiencies in the NYPD training (see Felix v City of New York, 344 FSupp3d 644, 663 [SDNY 2018]["Courts have rejected failure to train claims as conclusory when they fail to identify any specific policies, regulations, or deficiencies in training, or to allege a series ofother incidents"][internal quotes omitted]). Nor is there any showing that the alleged deficiencies "reflect a deliberate choice among various alternatives, rather than negligence or bureaucratic inaction" (Felix, 344 FSupp3d at 663, supra). No pattern of similar constitutional violations or other facts to show deliberate indifference are alleged, and Plaintiffdoes notplead a direct causal linkbetween amunicipal policy or custom and the alleged constitutional deprivation. Considering these deficiencies, the motion for is granted with respect to the Monell claims, and the sixth and seventh causes ofaction are dismissed. Plaintiff's third cause ofaction also purports to allege a cause ofaction under 42 U.S.C. 1983 for conspiracy to violate Plaintiff's civil rights, but fails to state any factual allegations that manifest any cause of action cognizable at law. The third cause of action is, therefore, also dismissed for failure to statute a cause ofaction upon which reliefmaybe granted. C. Motion Sequence 003
In Motion Seq. 003, the Citymoves to dismiss the action againstthe individual defendants for lack ofpersonaljurisdiction due to lack ofservice ofprocess. Plaintiffopposes and submits an affirmation ofJason Steinberger, Esq. ("Mr. Steinberger"), who previously represented Plaintiff in this action and drafted and filed the complaint, in support ofthe opposition. Mr. Steinberger attests that he "arranged for service to be made with Olympic Process, located at 895 Sheridan Avenue, BronxNY 10451 on or about March 26, 2014" (NYSCEF DocNo. 94, Steinberger affi] 7). He further attests that, "Ino longer have the affidavits ofservice because they were destroyed when myhome office was flooded on or about January 4, 2015" (id. ,i 9). No date, time, location, or method ofthe purported service is offered. Plaintiff's current counsel surmises that "based on the timeline ofevents," the date ofservice "wouldhavebeenbetweenMarch 26, 2014 and January 4, 2015" (Gorman aff in opposition ,i 17). Plaintiff also contends that the motion is untimely because the City did notmove within 60 days ofservice ofits answer and that the motion should be denied for good cause because the individual defendants actively participated in the litigation by the City's appearance and Detective Rama sitting for a deposition. "On a motion to dismiss pursuant to CPLR § 3211 (a) (8), the plaintiffhas the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction" (Coastto CoastEnergy, Inc. v Gasarch, 149 AD3d485,486 [1stDept2017]). Service ofprocess is a constitutional predicate ofpersonaljurisdiction which implicates the due process requirements ofnotice and opportunity to be heard (Keane v Kamin, 94 NY2d 263, 265 [1999]). The statutory notice provisions set forth in the CPLR must be strictly construed and "[n]otice received by means other than those authorized by statute does not bring a defendant within the jurisdiction ofthe court" (Macchia v Russo, 67 NY2d 592, 595 [1986]). "When the requirements for service ofprocess havenotbeen met, itis irrelevantthat defendantmayhave actuallyreceived

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the documents" (Rasche! v Rish, 69 NY2d 694, 697 [1986]). Here, Plaintiffhas failed to present any evidence ofservice ofprocess upon the individual defendants. No affidavits ofservice were filed or offered in opposition to the motion, and the affirmation ofMr. Steinberger, which lacks any detail regarding when, where, orby what manner any ofthe personal defendants was served with process, is entirely insufficient to demonstrate service of process sufficient to establish personaljurisdiction over the defendants. In the absence ofevidence ofpersonaljurisdiction over the individual defendants, the complaintmustbe dismissed against them. 5 Therefore, the motion is granted. Accordingly, itis ORDERED that defendant the City ofNew York's motion to dismiss the complaint as against the individual defendants for lack ofpersonaljurisdiction (Motion Seq. 003) is granted, andthe complaint is dismissed as against the individual defendants; anditis further ORDERED that defendantthe CityofNewYork'smotionfor summaryjudgment(Motion Seq. 002) is granted andthe complaint is dismissed with costs and disbursements to defendant as taxedbythe Clerkupon the submission ofan appropriate bill ofcosts; andit is further ORDERED thatthe Clerk is directedto enterjudgmentaccordingly.

4/30/2024

DATE
CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN HASAA. KIN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

5 The City also moves to dismiss for failure to move for a defaultjudgmentwithin one yearofdefaultpursuantto CPLR § 3215(c). However, inthe absence ofproofofservice, there is no evidence thatthe defendants were in default orthatthe time to move for a defaultjudgmenthadbegun (FirstFed Sav. &LoanAss 'n of Charleston v Tezzi, 164 AD3d at 760 ["Since service was never completed, the defendant's time to answer the complainthadnot yet startedto run and, therefore, she couldnotbe in default"]).

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