### 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 governmentsources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

PRESENT: 

### HON. GINA ABADI, J.S.C.
KENNETH BACOTE, Plaintiff.-againstTIIL CITY OF NEW YORK, 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. 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 24111 day orJune, 2024.

Index No.: 510559/2021 Motion Seq: J_ DECISIO1'\ /\ND ORDER

Recitation. as required by CPLR**~** 221 lJ(a). ufthe papers considered in the review ofthis motion: Papers NYSCEF Numbered 1\oticc ofMotion/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 I2(b) ~md 321 I(a)(7). dismissing the complaint as against them is, as follows:

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70

Background INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

In the evening ofTuesday, 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 1to restrain him tor a warrantless arrest (the incident).2The 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): Tlasers J use rcplaecahle cartridges co11tai11ing compressed nitrogcn 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 ofthe 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 storedata regarding each use for post-incident review." https://www.nyc,gov/assets'nypd/downloadsipdf'usc-of-forcc/usc-of-force-2020-issued-2021-12.pdf'(last accessed June 10. 2024), See l\ingshmak}('\\'ish Med Ctr. vAllstateIns, 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 NYPD-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 Omniform System

- Complaints, No. 2020-077-002955 (part ofNYSCEF Doc No. 54).**~** Certiticak'

## nrDisposition (NYSCEF Doc No, 55), 2

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024
ncgligent inniction

# oremotionaldistress, maliciousprosecution,ci\ii-rights violations, and punitivedamages (the first through eighth causes ol'action,respectively). Aftercompletion of discovery, defendants timely served the instant motion. Before the hearing on defendants' motion, plaintifh1 vithdrew (orconsented not to contest, as upplicablc): (I) all
causes ofaction as against PO Moussannerwho 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 ofemotional distress, malicious prosecution, civil-rights violations. and punitive damages (the latter as against the City only) (the second. fifth, sixth, seventh. and eighth
causes ofaction, 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 intliction 

# or emotional distress; and (4) punitive damages (the latter as directed against Sergeant Rcisgerzog only) (third/fourth, 

### first rilth. and eighth causes ofaction, rcspcctivcly}.<' Standard ofRcvic,.,, "Summaryjudgment 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'scounsel'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

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

Po111cruy, 35 NY2d 3(Jl, 364 (1974). '•Since it deprives the litigant of'his for her] day in court[,l it is considered adrastic remedy which should only be employed when there is no doubt as to the absence oftriable issues." lcl. "This drastic remedy should not be granted where there is any doubt as to the existence ofsuch issues, orwhere 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), reorgdenied 3 NY2cl 941 (1957). The movant's "burden is a heavy one and on a motion for summaryjudgment, 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 summaryjudgment 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). "Wherethe 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 summaryjudgment." Rahizadeh. 22 NY3d at 475. '"Indeed. the moving party"s failure to make a prima facic showing ofentitlement to summary_judgment requires a denied ofthe motion, regardless ofthe sufficiency ofthe opposing papers." id.'

7 In the interest

## orbrevity, the recitation ofthe less stringent standard ofrc\"icw underCPLR §3211 (a)(7) is omitted. 4

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70

Discussion 1. Common-Law False Arrest/Imprisonment INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

Plaintiff's third nnd fourth causes ofaction 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 ofaction alleging false arrest and false imprisonment, the pl~1intiffmust show that (l) the defendant intended to confine him. (2) the plaintiffwas conscious ofthe cont'incmcnt. (3) theplaintiffdid not consentto the confinement. and (4) theconfinement 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 ofproving 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 offact 

### 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 inkrcnccs to be dr:1wn therefrom." 

### Holland 11 City 

### ofPoughkeeJJ.1il', 90 i\D3d 84L 845 (2d Dept 2011) (internal 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 ofnonparties PO Officers Viera and Lester. Sergeant Rcisgcrzog was not wearing abody camera at the time ofthe incident. Sergeant Rcisgcrzog's EBTtr at page 57, line 18 to page 58, line 10. 5

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

parties' conflicting pretrial testimony'1

- as to whether (or not) a reasonable police officer could interpret that, (lt the time and place ofthe incident, the unarmed plaintiff: (I) was menacing any 

### NYPD officers in any way and/or was engaged in any type ordisorderly conduct, consitkring that at (and shortly before) the time ofthe 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 orany kind on his body or anywhere \Vithin his reach, and no weapons ofany 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 ofthe laser darts irnpakd the 

### globe orhis 

### 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 ofsummaryjudgment in dei'cndants' favor on the ground ofqualificd immunity. Secf-!o/Jand, 90 AD3d at 845-846; Oicdcrich 1· i\\ack 1/osp.,49 AD3d49L493 (2d Dept 2008), h·dismissedinpart, de11fr,dinpart 1l I'\Y3d 862 (2008). Further. the City

'1See 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 Plaintiffcould not describe how the tascr shucked l11n1e S,'e Plaintilrs GML**~** 50-h hearing tr ar page 33. lines 2-9 l

### "ll]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 ("Ijust remember getting the air knocked nut of me...."): page 39. lines 17-19 ("Ijustfelt, Ido not remember, Irnuldn'tbreathe, Igot the air knocked oul ofme."): page 40. line 10 ("It's hard to describe what I !'cit") ('.'JYSCEr Doc No. 43). 6

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

may be held vicariously liable under the state hm claim for torts committed by Sergeant Rcisgerzog acting (as he admittedly did) within the scope ofhis employment\vith NYPD. See Eckardt v City ofWhite Plains, 87 AD3d l049, I051 (2d Dept 2011). Accordingly, ddcndants have failed to establish their prima facic entitlement tojudgment as a matter o!' law dismissingplaintiffsthird ,.md fourth causesofaction !'orcommon-1:Jw false arrest and false imprisonment.respectively. without regard to the sufficiencyofplaintiffsopposition. 2. Common-LawAssault/Battery "To recover damages for [common-law] battery, 8 plt1intiffmust 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 

### Ilomifro11, IR J\D3d436. 436 (2d Dept 2005). 

### Ii·denied5 NY3d 708 (2005). "A [common

### law]
... assault is an intentional placing ofanotherperson in fear ofimminent hannful or offensive contact." Charkhy \' Altman. 252 AD2d 411. 414 (Ist 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 11 Ciry ofMount Vernon, 188 AD3d 1139. 1141 (2d Dept 2020). The existence ofprobable cause for an arrest and ensuing imprisonment does noL bar a cause ofaction 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 ofa public duty, plaintiffmust establish that such police officer used excessive fon.:c under state law. See Disla 1· City uf Nr, 117 AD3d 617, 618 1

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

(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 ajury to decide.'· Plern, 222 AD3d at 797 (internal quotation marks omitted):seeHolland. 90 AD3d at 845. As noted, a municipality may be vicariously liable on common-law assault and battery claims for torts committed 

### by apolice officerwhile acting within the scope 

### orhis/heremployment.SeeLeporev Tm1'11 o(Grec11h111gh. 120 AD3d 1202, 1204 (2d Dept 2014). At this stage of litigation, defendants, as part oftheir prima facic showing, have faikJ to eliminate triable issues offact as to whether Sergeant Rcisgerzog used excessive force in deploying his laser at the time and place ofthe 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 ofNY, 187 ;\03d l 164, 1167 (2d Dept 2020); /lo/land, 90 ADJ<l at 844. Furthcr, defendants' aforementioned failure to establish. prirna r:icic, that plaintiffs warrantless arrest \vas L1wf\il precludes an award ofsummary 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 plaintiffsopposition.

11 lkl\:ndants' n:Iiance 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 September20, 2022 (NYSCEF Doc No. 58), is misplaced because both Patrol Ciuide Procedures went intoeffectafterthe dateofthe incident ofJune 2, 2020. Dcl"cndants' reliance on the Expert (footnote continued) 8

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70

3. Negligent Infliction ofEmotional Distress INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

Plaintiffs r.:laim for emotional distn.::ss is subject lo dismissal as duplicative ofhis 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}: Ilarri11gto11 1· lltiu, 48 Misc 3d 132(A), 2015 NY Slip Op 51054(U). *2 (App Term, 2d Dept, 2d, 11 111 and I3th Jud Dists 2015): secalso 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 extantportion ofplaintiffseighth cause ofcause for punitive damages as against Sergeant 

### Reisgerzog is subject 

### to dismissal. However, plaintifrsrequest for punitivedamages in the ad danmum clause ofhis 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 ofRetired 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 ofthe 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 oftas;;rs. 9

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024

The Corn1 has considered the parties' remaining contentions and found them either academic or without merit in light ofits determination. J\ll reliefnot specifically granted ben:in is denied. Conclusion Accordingly, it is ORDERED that the branch ofdefendants" motion which is for an order, pursuant to

### CPLR**~** 

### T2 l

### 2(b), for summaryjudgmentis grantee!to !lie extrn!that: (l)all ofplaintitrs
causes 

# or action against PO Moussanncf arc dismissed: (2) plaintiffs second cause of action for negligent hiring and retention. fifth cause ofaction for intentional and crnotionaI infliction ofemotional distress, sixth cmtsc 

# or action lor malicious prosecution, seventh
cause ofaction for civil-rights violations, and eighth cause

# oraction 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 Moussannefand the CiLy (but not as against Sergeant Reisgerzog) is stricken; and the remainder ofLhis branch of dcfcmlants' motion is denied; and it is further ORDERED that the remaining branch ofdefendants' motion which is for order. pursu,111t to 

### CPLR**~** 

### 3211(a)(7). dismissing the complaint It)!' failure to state a claim is deniedus dcademic; andit is further ORDERED that for the avoidance ofdouht, this action shall proceed as against the City and Sergeant Reisgcrzog on plaintiffs firsl, third, anJ rourth causes

# oraction which
arc fur commun-lmv assault/battery, false arrest, and false imprisonment, respectively, as

IO

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### [FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ NYSCEF DOC. NO. 70 INDEX NO. 510559/2021 RECEIVED NYSCEF: 06/26/2024
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, -agai11s1- THE CITY OF NEW YORK. POLICE SERGEANTJASON REISGERZOC;

- Shield No 4576. and JOI I'-/ DOES

- Police Officers As Yct Unidcntif'icd. Dci'i:ndanls.

; and it is further Jndcx No.: 510559/2021

ORDERED that plaintifrs counsel is directed to electronically serve acopy o!'this Decision and Order on the Corporation Counsel and to ekctronical\y serve an affidavit of service thereofwith the Kings County Clerk; and it is Curthcr ORDEREDthat the parties arc r.:rnindcd oftheirnext 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 ofthis Court.

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/ 

### /4__) HON. GINA J\BJ\DI J. S. C.



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