UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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DAVID FERNANDEZ, 

Plaintiff, 

-againstTHE CITY OF NEW YORK, “JANE DOE” 

POLICE OFFICER, and “JOHN DOE” POLICE 

OFFICERS #1, #2, #3, #4, #5, 

Defendants. 

 

ANSWER OF 

DEFENDANT CITY OF 

NEW YORK 

 

07 CV 3495 (SHS) 

 

Trial By Jury Requested

(filed by ECF) 

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Defendant City of New York, by its attorney Michael A. Cardozo, Corporation 

Counsel of the City of New York, as and for its answer to the complaint, respectfully alleges, 

upon information and belief, as follows: 

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

admits that plaintiff purports to bring this action and to assert claims as set forth therein. 

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

admits that plaintiff purports to bring this action and to invoke this Court’s jurisdiction as set 

forth therein. 

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

admits that plaintiff purports to invoke this Court’s supplemental jurisdiction as set forth therein. 

4. Denies the allegations set forth in paragraph “4” of the complaint, except 

admits that plaintiff purports to base venue as set forth therein. 

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

of the allegations set forth in paragraph “5” of the complaint. 

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

admits that the City of New York is a municipal corporation authorized pursuant to the laws of 

the State of New York, admits that the City of New York maintains a police department, and 

states that the allegations concerning the City’s authorization by law and responsibilities 

concerning its police department and the City’s assumption of risks are legal conclusions rather 

than averments of fact and, accordingly, no response is required. 

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

of the allegations set forth in paragraph “7” of the complaint, except admits that plaintiff purports 

to sue the “Jane Doe” police officer as set forth therein. 

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

of the allegations set forth in paragraph “8” of the complaint, except admits that plaintiff purports 

to sue the “John Doe” police officers as set forth therein.. 

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

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

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

admits that a document purporting to be a notice of claim was received by the Comptroller’s 

Office of the City of New York on or about January 31, 2007. 

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

admits that more than thirty days have elapsed since that date, and admits that the claim has not 

been settled. 

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

admits that, on or about November 19, 2006, plaintiff was in the vicinity of the Jet Set Café 

located at 1834 Webster Avenue, Bronx New York, and denies knowledge or information as to 

the truth of the allegations concerning why plaintiff was there. 

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

admits that plaintiff was in the vicinity of the establishment at approximately 4:15 a.m., and that 

there was a crowd at the front door. 

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

admits that police were attempting to disperse the crowd. 

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

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

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

admits that plaintiff was arrested and issued summonses for disorderly conduct in violation of 

section 240.20, subdivisions 6 and 7 of the Penal Code. 

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

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

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

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

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

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

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

defendant repeats and realleges the responses set forth in paragraph “1” through “23” of this 

answer as if fully set forth therein. 

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

26. In response to the allegations set forth in paragraph “26” of the complaint, 

defendant repeats and realleges the responses set forth in paragraph “1” through “25” of this 

answer as if fully set forth therein. 

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

28. In response to the allegations set forth in paragraph “28” of the complaint, 

defendant repeats and realleges the responses set forth in paragraph “1” through “27” of this 

answer as if fully set forth therein. 

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

30. Denies knowledge of information sufficient to form a belief as to the truth 

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

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

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

33. Defendant states that the allegations set forth in paragraph “33” of the 

complaint are legal conclusions rather than averments of fact and, accordingly, no response is 

required. To the extent that a response is required, defendant denies the allegations set forth 

therein. 

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

admit that plaintiff purports to proceed as stated therein. 

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

defendant repeats and realleges the responses set forth in paragraph “1” through “34” of this 

answer as if fully set forth therein. 

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

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37. Defendant states that the allegations set forth in paragraph “37” of the 

complaint are legal conclusions rather than averments of fact and, accordingly, no response is 

required. To the extent that a response is required, defendant denies the allegations set forth 

therein. 

38. Deny the allegations set forth in paragraph “38” of the complaint, except 

admit that plaintiff purports to proceed as stated therein. 

39. In response to the allegations set forth in paragraph “39” of the complaint, 

defendant repeats and realleges the responses set forth in paragraph “1” through “38” of this 

answer as if fully set forth therein. 

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

41. Defendant states that the allegations set forth in paragraph “41” of the 

complaint are legal conclusions rather than averments of fact and, accordingly, no response is 

required. To the extent that a response is required, defendant denies the allegations set forth 

therein. 

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

admit that plaintiff purports to proceed as stated therein. 

43. In response to the allegations set forth in paragraph “43” of the complaint, 

defendant repeats and realleges the responses set forth in paragraph “1” through “42” of this 

answer as if fully set forth therein. 

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

45. Defendant states that the allegations set forth in paragraph “45” of the 

complaint are legal conclusions rather than averments of fact and, accordingly, no response is 

Case 1:07-cv-03495-SHS Document 5 Filed 07/20/2007 Page 5 of 9
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required. To the extent that a response is required, defendant denies the allegations set forth 

therein. 

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

admit that plaintiff purports to proceed as stated therein. 

47. In response to the allegations set forth in paragraph “47” of the complaint, 

defendant repeats and realleges the responses set forth in paragraph “1” through “46” of this 

answer as if fully set forth therein. 

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

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

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

admit that plaintiff purports to proceed as stated therein. 

51. Paragraph “51” of the complaint is a jury demand to which no response is 

required. 

AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 

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

AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 

53. Defendant has 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, nor has defendant violated any act of Congress providing for the protection of civil 

rights. 

AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 

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

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

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

liability. 

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 

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

culpable or negligent conduct and/or the conduct of someone not under the control of defendant, 

and was not the proximate result of any act of defendant. 

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 

56. There was probable cause for plaintiff’s arrest and/or detention. 

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: 

57. Punitive damages are not obtainable as against defendant City of New 

York. 

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: 

58. At all times relevant to the acts alleged in the complaint, defendant acted 

reasonably and in the proper and lawful exercise of its discretion. 

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WHEREFORE, defendant City of New York 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 

July 20, 2007 

 

MICHAEL A. CARDOZO

Corporation Counsel of the City 

of New York 

Attorney for Defendant City of New York 

100 Church Street 

New York, New York 10007 

(212) 227-4071 

By: ______________/S/________________ 

 SUSAN P. SCHARFSTEIN (SS 2476) 

 

To: Anthony Cecutti, Esq. 

Romano & Kuan, PLLC 

100 Lafayette Street, Suite 410 

New York, NY 10013 

Case 1:07-cv-03495-SHS Document 5 Filed 07/20/2007 Page 8 of 9
 

Index No. 07 CV 3495 (SHS) 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

DAVID FERNANDEZ, 

Plaintiff, 

-againstTHE CITY OF NEW YORK, “JANE DOE” POLICE OFFICER, and 

“JOHN DOE” POLICE OFFICERS #1, #2, #3, #4, #5, 

Defendants. 

ANSWER OF DEFENDANT CITY OF NEW YORK 

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York 

Attorney for Defendant City of New York 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Susan P. Scharfstein (SS 2476) 

Tel: (212) 227-4071 

NYCLIS No.: 

Due and timely service is hereby admitted. 

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

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

Attorney for ..................................................................................... 

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