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.
[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 Y ct 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 or June, 2024. 

Index No.: 510559/2021 

Motion Seq: J_ 

DECISIO1'\ /\ND ORDER 

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: 

1 of 11 [* 1]
[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 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]
[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 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 of 11 [* 3]
[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 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. 

4 

4 of 11 [* 4]
[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 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 11 City of PoughkeeJJ.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 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. 

5 

5 of 11 [* 5]
[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 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 of 11 [* 6]
[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 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 [ commonlaw] ... 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 11 Ciry of Mount Vernon, 

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 

1 

7 of 11 [* 7]
[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 

I common-] 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) 

8 

8 of 11 [* 8]
[FILED: KINGS COUNTY CLERK 06/26/2024 02:59 P~ 

NYSCEF DOC. NO. 70 

3. Negligent Infliction of Emotional Distress 

INDEX NO. 510559/2021 

RECEIVED NYSCEF: 06/26/2024 

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. 

9 

9 of 11 [* 9]
[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 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]
[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 SERGEANT JASON REISGERZOC; -

Shield No 4576. and 

JOI I'-/ DOES - Police Officers As Y ct Unidcntif'icd. 

Dci'i:ndanls. 

; and it is further 

Jndcx No.: 510559/2021 

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. 

11 

11 of 11 

ENTER. 

/ 

/4__) 

HON. GINA J\BJ\DI 

J. S. C. 

[* 11]