UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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NORMAN SMALLWOOD, 

Plaintiff,

-againstCITY OF NEW YORK, P.O. DAVID WENZEL, and 

P.O.’s JOHN and JANE DOE #1-10, individually and in 

their official capacities, (the names John and Jane Doe 

being fictitious, as the true names and presently unknown),

Defendants.

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ANSWER TO COMPLAINT 

07 CV 5711 CV (JGK) 

Jury Trial Demanded

Defendant City of New York and PO David Wenzel, by their attorney, Michael 

A. Cardozo, Corporation Counsel of the City of New York, for their answer to the complaint, 

respectfully allege, upon information and belief, as follows: 

1. Deny the allegations set forth in paragraph "1" of the complaint, except 

admit that plaintiff purports to proceed as stated therein. 

2. Deny the allegations set forth in paragraph "2" of the complaint, except 

admit that plaintiff purports to invoke the jurisdiction of the Court as stated therein. 

3. Deny the allegations set forth in paragraph "3" of the complaint, except 

admit that plaintiff purports to invoke the jurisdiction of the Court as stated therein. 

4. Deny the allegations set forth in paragraph "4" of the complaint, except 

admit that plaintiff purports to base venue as stated therein. 

5. Paragraph "5" of the complaint fails to set forth any factual averments. 

Accordingly, defendant respectfully submits that no response is required. 

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6. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “6” of the complaint. 

7. Deny the allegations set forth in paragraph “7” of the complaint, except 

admit that the City of New York is a municipal corporation. 

8. Deny the allegations set forth in paragraph “8” of the complaint, except 

admit that the City of New York maintains a police department. 

9. Deny the allegations set forth in paragraph “9” of the complaint, except 

admit that PO David Wenzel was a police officer. Defendants further Deny knowledge or 

information sufficient to form a belief as to the truth of the allegations pertaining to unidentified 

individuals. 

10. Defendant states that the allegations set forth in paragraph “10” of the 

complaint sets forth legal conclusions to which no response is required. 

11. Defendant states that the allegations set forth in paragraph “11” of the 

complaint sets forth legal conclusions to which no response is required. 

12. Defendant states that the allegations set forth in paragraph “12” of the 

complaint sets forth legal conclusions to which no response is required. 

13. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “13” of the complaint. 

14. Deny the allegations set forth in paragraph “14” of the complaint. 

15. Deny the allegations set forth in paragraph “15” of the complaint. 

16. Deny the allegations set forth in paragraph “16” of the complaint. 

17. Deny the allegations set forth in paragraph “17” of the complaint. 

18. Deny the allegations set forth in paragraph “18” of the complaint. 

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19. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “19” of the complaint. 

20. Deny the allegations set forth in paragraph “20” of the complaint. 

21. Deny the allegations set forth in paragraph “21” of the complaint. 

22. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “22” of the complaint. 

23. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “23” of the complaint. 

24. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “24” of the complaint, except admit that plaintiff was 

detained in police custody. 

25. Deny the allegations set forth in paragraph “25” of the complaint. 

26. Deny the allegations set forth in paragraph “26” of the complaint. 

27. Admit that on September 13, 2006, criminal charges against plaintiff were 

dismissed. 

28. Deny the allegations set forth in paragraph “28” of the complaint. 

29. In response to the allegations set forth in paragraph “29” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “28” inclusive of this 

answer, as if fully set forth herein. 

30. Deny the allegations set forth in paragraph “30” of the complain. 

31. Deny the allegations set forth in paragraph “31” of the complaint. 

32. Deny the allegations set forth in paragraph “32” of the complaint. 

33. Deny the allegations set forth in paragraph “33” of the complaint. 

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34. Deny the allegations set forth in paragraph “34” of the complaint. 

35. In response to the allegations set forth in paragraph “35” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “34” inclusive of this 

answer, as if fully set forth herein. 

36. Deny the allegations set forth in paragraph “36” of the complaint. 

37. Deny the allegations set forth in paragraph “37” of the complaint. 

38. In response to the allegations set forth in paragraph “38” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “37” inclusive of this 

answer, as if fully set forth herein. 

39. Deny the allegations set forth in paragraph “39” of the complaint. 

40. Deny the allegations set forth in paragraph “40” of the complaint. 

41. In response to the allegations set forth in paragraph “41” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “40” inclusive of this 

answer, as if fully set forth herein. 

42. Deny the allegations set forth in paragraph “42” of the complaint. 

43. Deny the allegations set forth in paragraph “43” of the complaint. 

44. Deny the allegations set forth in paragraph “44” of the complaint. 

45. Deny the allegations set forth in paragraph “45” of the complaint. 

46. Deny the allegations set forth in paragraph “46” of the complaint. 

47. Deny the allegations set forth in paragraph “47” of the complaint. 

48. Deny the allegations set forth in paragraph “48” of the complaint. 

49. Deny the allegations set forth in paragraph “49” of the complaint. 

50. Deny the allegations set forth in paragraph “50” of the complaint. 

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51. Deny the allegations set forth in paragraph “51” of the complaint. 

52. Deny the allegations set forth in paragraph “52” of the complaint, except 

admit that the charges against plaintiff were dismissed. 

53. In response to the allegations set forth in paragraph “53” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “52” inclusive of this 

answer, as if fully set forth herein. 

54. Deny the allegations set forth in paragraph "54" of the complaint. 

55. Deny the allegations set forth in paragraph “55” of the complaint. 

56. Deny the allegations set forth in paragraph "56” of the complaint. 

57. In response to the allegations set forth in paragraph “57” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “66” inclusive of this 

answer, as if fully set forth herein. 

58. Deny the allegations set forth in paragraph "58" of the complaint. 

59. Deny the allegations set forth in paragraph “59” of the complaint. 

60. Deny the allegations set forth in paragraph “60” of the complaint. 

61. Deny the allegations set forth in paragraph "61" of the complaint. 

62. Deny the allegations set forth in paragraph "62" of the complaint. 

63. Deny the allegations set forth in paragraph "63" of the complaint. 

64. Deny the allegations set forth in paragraph "64" of the complaint. 

65. Deny the allegations set forth in paragraph “65” of the complaint. 

66. Deny the allegations set forth in paragraph “66” of the complaint and all 

its subparts. 

67. Deny the allegations set forth in paragraph "67" of the complaint. 

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68. In response to the allegations set forth in paragraph “68” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “67” inclusive of this 

answer, as if fully set forth herein. 

69. Deny the allegations set forth in paragraph “69” of the complaint, except 

admit that a document purporting to be a Notice of Claim was received by the Office of the 

Comptroller. 

70. Deny the allegations set forth in paragraph “70” of the complaint, except 

admit that no payment has been made by defendant City. 

71. Deny the allegations set forth in paragraph “71” of the complaint, except 

admit that a hearing was held on February 27, 2007. 

72. Deny the allegations set forth in paragraph "72" of the complaint, except 

admit that admit that a document purporting to be a Notice of Claim was received by the Office 

of the Comptroller. 

73. Deny the allegations set forth in paragraph "73" of the complaint. 

74. Deny the allegations set forth in paragraph "74" of the complaint. 

75. In response to the allegations set forth in paragraph “75” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “74” inclusive of this 

answer, as if fully set forth herein. 

76. Deny the allegations set forth in paragraph "76" of the complaint. 

77. Deny the allegations set forth in paragraph "77" of the complaint. 

78. Deny the allegations set forth in paragraph "78" of the complaint. 

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79. In response to the allegations set forth in paragraph “79” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “78” inclusive of this 

answer, as if fully set forth herein. 

80. Deny the allegations set forth in paragraph "80" of the complaint. 

81. Deny the allegations set forth in paragraph "81" of the complaint. 

82. Deny the allegations set forth in paragraph "82" of the complaint. 

83. Deny the allegations set forth in paragraph "83" of the complaint. 

84. In response to the allegations set forth in paragraph “84” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “83” inclusive of this 

answer, as if fully set forth herein. 

85. Deny the allegations set forth in paragraph "85" of the complaint. 

86. Deny the allegations set forth in paragraph "86" of the complaint. 

87. In response to the allegations set forth in paragraph “87” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “86” inclusive of this 

answer, as if fully set forth herein. 

88. Deny the allegations set forth in paragraph "88" of the complaint. 

89. Deny the allegations set forth in paragraph "89" of the complaint. 

90. Deny the allegations set forth in paragraph "90" of the complaint. 

91. In response to the allegations set forth in paragraph “91” of the complaint, 

defendants repeat and reallege the responses set forth in paragraphs "1" to “90” inclusive of this 

answer, as if fully set forth herein. 

92. Deny the allegations set forth in paragraph "92" of the complaint. 

93. Deny the allegations set forth in paragraph "93" of the complaint. 

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94. Deny the allegations set forth in paragraph "94" of the complaint. 

95. Deny the allegations set forth in paragraph "95" of the complaint. 

96. Deny the allegations set forth in paragraph "96" of the complaint. 

97. Deny the allegations set forth in paragraph "97" of the complaint. 

98. Deny the allegations set forth in paragraph "98" of the complaint. 

99. Deny the allegations set forth in paragraph "99" of the complaint. 

100. Deny the allegations set forth in paragraph "100" of the complaint. 

101. Deny the allegations set forth in paragraph "101" of the complaint. 

102. Deny the allegations set forth in paragraph "102" of the complaint. 

103. Deny the allegations set forth in paragraph "103" of the complaint, except 

admit that the criminal proceedings were dismissed on or about September 13, 2006. 

104. In response to the allegations set forth in paragraph “104” of the 

complaint, defendants repeat and reallege the responses set forth in paragraphs "1" to “103” 

inclusive of this answer, as if fully set forth herein. 

105. Deny the allegations set forth in paragraph "105" of the complaint. 

106. Deny the allegations set forth in paragraph "106" of the complaint. 

107. Deny the allegations set forth in paragraph "107" of the complaint. 

108. Deny the allegations set forth in paragraph "108" of the complaint. 

109. In response to the allegations set forth in paragraph “109” of the 

complaint, defendants repeat and reallege the responses set forth in paragraphs "1" to “108” 

inclusive of this answer, as if fully set forth herein. 

110. Deny the allegations set forth in paragraph "110" of the complaint. 

111. Deny the allegations set forth in paragraph "111" of the complaint. 

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112. Deny the allegations set forth in paragraph "112" of the complaint. 

113. Deny the allegations set forth in paragraph "113" of the complaint. 

114. Deny the allegations set forth in paragraph "114" of the complaint. 

115. In response to the allegations set forth in paragraph “115” of the 

complaint, defendants repeat and reallege the responses set forth in paragraphs "1" to “114” 

inclusive of this answer, as if fully set forth herein. 

116. Deny the allegations set forth in paragraph "116" of the complaint. 

117. Deny the allegations set forth in paragraph "117" of the complaint. 

118. In response to the allegations set forth in paragraph “118” of the 

complaint, defendants repeat and reallege the responses set forth in paragraphs "1" to “117” 

inclusive of this answer, as if fully set forth herein. 

119. Deny the allegations set forth in paragraph "119" of the complaint. 

120. Deny the allegations set forth in paragraph "120" of the complaint. 

AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 

121. The complaint fails to state a claim upon which relief can be granted. 

AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 

122. Defendants have not violated any rights, privileges or immunities under 

the Constitution or laws of the United States or the State of New York or any political 

subdivision thereof. 

AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 

123. At all times relevant to the acts alleged in the complaint, defendants acted 

reasonably in the proper and lawful exercise of their discretion. 

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 

124. Any injury alleged to have been sustained resulted from plaintiff’s own 

culpable or negligent conduct and was not the proximate result of any act of the defendants. 

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 

125. Plaintiff has failed to comply with New York General Municipal Law 

§50-e. 

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: 

126. Plaintiff provoked any incident. 

AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE: 

 126. Punitive damages cannot be recovered against the City of New York. 

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: 

127. At all times relevant to the acts alleged in the complaint, defendant City of 

New York, its agents and officials, acted reasonably and properly in the lawful exercise of their 

discretion. Therefore, they are entitled to governmental immunity from liability. 

AS AND FOR A NINTH AFFIRMATIVE DEFENSE: 

128. There was probable cause for plaintiff’s arrest, detention, and prosecution. 

AS AND FOR A TENTH AFFIRMATIVE DEFENSE: 

129. Officer Wenzel has not violated any clearly established constitutional or 

statutory right of which a reasonable person would have known and therefore is protected by 

qualified immunity. 

WHEREFORE, defendant City of New York and Officer Wenzel request judgment 

dismissing the complaint in its entirety, together with the costs and disbursements of this action, 

and such other and further relief as the Court may deem just and proper. 

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Dated: New York, New York 

September 10, 2007 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

City of New York 

Attorney for Defendant City of New York and 

Officer Wenzel 

 100 Church Street 

New York, New York 10007 

(212) 788-1029 

By: /s/ 

Jennifer L. Rubin 

 Assistant Corporation Counsel 

To: Rose M. Weber, Esq. (by ECF) 

 225 Broadway, Suite 1608 

 New York, NY 10007 

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