UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

----------------------------------------------------------------------- x 

DARRYL AMIKER, 

Plaintiff,

-againstTHE CITY OF NY, P.O. ORLANDO PEREZ, P.O. 

ERICK ORTIZ, P.O. CHRISTIAN MCBREARTY AND 

P.O.s “JOHN DOE” #1-5 (SAID NAMES BEING 

FICTITIOUS, AS THE TRUE NAMES ARE 

PRESENTLY UNKNOWN), INDIVIDUALLY AND IN 

THEIR OFFICIAL CAPACITIES, 

Defendants.

----------------------------------------------------------------------- x 

ANSWER OF 

DEFENDANT PEREZ 

07 Civ. 3554 (RPP) 

Jury Trial Demanded 

Defendant Orlando Perez, by his attorney, Michael A. Cardozo, Corporation 

Counsel of the City of New York, for his answer to the complaint, respectfully alleges, upon 

information and belief, as follows:1

1. Denies the allegations set forth in paragraph “1” of the complaint, except 

admits that plaintiff purports to bring this action as stated therein.

2. Denies the allegations set forth in paragraph “2” of the complaint, except 

admits that plaintiff purports to bring this action as stated therein. 

3. Denies the allegations set forth in paragraph “3” of the complaint, except 

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

 

1

 Defendants City of New York, Police Officer Christian McBrearty, and Police Officer Erick 

Ortiz filed their answer to the complaint on August 2, 2007. 

Case 1:07-cv-03554-RPP Document 12 Filed 09/06/2007 Page 1 of 9
4. Denies the allegations set forth in paragraph “4” of the complaint, except 

admits that plaintiff purports to base venue as stated therein. 

5. Defendants state that paragraph “5” contains no averments of fact and, 

accordingly, no response is required. 

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

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

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

admits that the City of New York is a municipal entity, that it maintains a police department, and 

respectfully refers the Court to the New York City Charter and the Administrative Code for a full 

and complete statement of the relationship between the City of New York and the New York 

City Police Department. 

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

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning unidentified officers, and admits that Erick Ortiz and Christian McBrearty are 

currently employed by the City of New York as police officers and that Orlando Perez was 

formerly employed by the City of New York as a police officer. Defendant further states that 

plaintiff’s allegations concerning “color of state law” constitute conclusions of law rather than 

averments of fact to which no response is required. 

9. The allegations set forth in paragraph “9” of the complaint constitute legal 

conclusions rather than averments of fact to which no response is required. 

10. Denies the allegations set forth in paragraph “10” of the complaint, and 

respectfully refers the Court to the New York City Charter and the Administrative Code for a full 

and complete statement of the City of New York’s responsibilities. 

2 

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11. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “11” of the complaint. 

12. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “12” of the complaint. 

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

of the allegations set forth in paragraph “13” of the complaint, except admits that plaintiff was 

stopped in the vicinity of 405 East 105 Street. th

14. Denies the allegations set forth in paragraph “14” of the complaint, except 

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning plaintiff’s statements. 

15. Denies the allegations set forth in paragraph “15” of the complaint, except 

admits that plaintiff was arrested on December 8, 2006. 

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

17. Denies knowledge or information sufficient to form a belief as to the truth 

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

18. Denies the allegations set forth in paragraph “18” of the complaint, except 

admits that plaintiff was handcuffed, searched and that his arrest was processed. 

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

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

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

21. Denies the allegations set forth in paragraph “21” of the complaint, except 

admits that plaintiff was charged with Criminal Sale of a Controlled Substance in the Third 

Degree. 

3 

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

admits that plaintiff’s underlying criminal case was dismissed on April 6, 2007. 

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

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning the length of time plaintiff was in custody and any time he missed from work. 

24. In response to the allegations set forth in paragraph “24” of the complaint, 

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

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

legal conclusions rather than averments of fact to which no response is required. 

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

27. The allegations set forth in paragraph “27” of the complaint constitute 

legal conclusions rather than averments of fact to which no response is required. 

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

legal conclusions rather than averments of fact to which no response is required. 

29. Denies the allegations set forth in paragraph “29” of the complaint. 

30. Denies the allegations set forth in paragraph “30” of the complaint. 

31. In response to the allegations set forth in paragraph “31” of the complaint, 

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

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

4 

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33. In response to the allegations set forth in paragraph “33” of the complaint, 

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

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

35. Denies the allegations set forth in paragraph “35” of the complaint. 

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

37. In response to the allegations set forth in paragraph “37” of the complaint, 

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

38. Denies the allegations set forth in paragraph “38” of the complaint. 

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

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

41. Denies the allegations set forth in paragraph “41” of the complaint. 

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

43. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “43” of the complaint, except admits that plaintiff’s 

underlying criminal case was dismissed on April 6, 2007. 

44. In response to the allegations set forth in paragraph “44” of the complaint, 

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

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

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

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

5 

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48. In response to the allegations set forth in paragraph “48” of the complaint, 

defendants repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

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

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

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

52. Denies the allegations set forth in paragraph “52” of the complaint. 

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

defendant repeats and realleges all the preceding paragraphs of this answer, as if fully set forth 

herein. 

54. Denies the allegations set forth in paragraph “54” of the complaint. 

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

56. The allegations set forth in paragraph “56” of the complaint constitute 

legal conclusions rather than averments of fact to which no response is required. 

57. Denies the allegations set forth in paragraph “57” of the complaint. 

58. Denies the allegations set forth in paragraph “58” of the complaint. 

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

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

61. Denies the allegations set forth in paragraph “61” of the complaint. 

62. Denies the allegations set forth in paragraph “62” of the complaint. 

63. Denies the allegations set forth in paragraph “63” of the complaint, and all 

subparts thereto. 

AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

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

6 

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AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

65. Defendants have not violated any rights, privileges or immunities secured 

to plaintiff by the Constitution or laws of the United States or the State of New York or any 

political subdivision thereof, nor have defendants violated any act of Congress providing for the 

protection of civil rights. 

AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

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

culpable or negligent conduct and/or the intervening conduct of third parties, and was not the 

proximate result of any act of the defendants. 

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

67. At all times relevant to the acts alleged in the complaint, the duties and 

functions of defendant City’s officials entailed the reasonable exercise of proper and lawful 

discretion. Therefore, defendant City of New York is entitled to governmental immunity from 

liability. 

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

68. Plaintiff cannot obtain punitive damages as against the City of New York. 

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

69. Plaintiff’s claims may be barred, in whole or in part, by the applicable 

statute of limitations period. 

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

70. 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 AN EIGHTH AFFIRMATIVE DEFENSE 

71. Plaintiff’s claims may be barred, in whole or in part, because plaintiff 

failed to comply with all conditions precedent to suit. 

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

72. Plaintiff’s claims may be barred, in whole or in part, by the doctrines of 

res judicata and/or collateral estoppel. 

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

73. Plaintiff provoked any incident. 

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

74. Defendants Ortiz, McBrearty, and Perez have not violated any clearly 

established constitutional or statutory right of which a reasonable person would have known and 

therefore are protected by qualified immunity. 

WHEREFORE, defendant Orlando Perez requests 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. 

Dated: New York, New York 

September 6, 2007 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

 City of New York 

Attorney for Defendants City of New York, 

McBrearty, Ortiz, and Perez 

100 Church Street 

New York, New York 10007 

(212) 788-0971 

By: /s/ 

Anna Nguyen 

Assistant Corporation Counsel 

To: Christopher Galiardo, Esq. (Via ECF) 

Attorney for Plaintiff

8 

Case 1:07-cv-03554-RPP Document 12 Filed 09/06/2007 Page 8 of 9
Index No. 07 Civ. 3554 (RPP) 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

DARRYL AMIKER, 

Plaintiff, 

-againstTHE CITY OF NY, P.O. ORLANDO PEREZ, P.O. 

ERICK ORTIZ, P.O. CHRISTIAN MCBREARTY 

AND P.O.s “JOHN DOE” #1-5 (SAID NAMES BEING 

FICTITIOUS, AS THE TRUE NAMES ARE 

PRESENTLY UNKNOWN), INDIVIDUALLY AND 

IN THEIR OFFICIAL CAPACITIES, 

Defendants. 

ANSWER OF DEFENDANT PEREZ 

MICHAEL A. CARDOZO 

Corporation Counsel of the City of New York 

Attorney for Defendants City of New York, Police 

Officers McBrearty and Ortiz, and Perez 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Anna Nguyen 

Tel: (212) 788-0971 

LawManager No. 2007-016159 

Due and timely service is hereby admitted. 

New York, N.Y. .....................................................,200 

...............................................................................Esq. 

Attorney for City of New York 

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