Opinion
Index No. 155188/2021
08-24-2023
Carol Jordan, Plaintiff, v. COURT OFFICER ANTHONY PISANO, SHIELD NO. 3584, COURT OFFICER TERRANCE FAULK, SHIELD NO. 8037, POLICE OFFICERS JOHN DOE 1-10, Defendants.
Plaintiff- Cass Luskin, Shulman And Hill PLLC Defendants- Letitia James, Anjali Bhat, NEW York State Office of the Attorney General
Unpublished Opinion
Plaintiff- Cass Luskin, Shulman And Hill PLLC
Defendants- Letitia James, Anjali Bhat, NEW York State Office of the Attorney General
Dakota D. Ramseur, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for DISMISSAL.
Plaintiff, Carol Jordan (plaintiff), commenced this action pursuant to 42 U.S.C. § 1983 for false arrest and false imprisonment, unlawful stop, question, and frisk, unlawful search, denial of the right to a fair trial, excessive force, negligent infliction of emotional distress, negligent hiring, retention, training, and supervision, failure to intervene, and malicious prosecution, against defendants, court officer Anthony Pisano (Officer Pisano), Shield No. 3584, court officer Terrance Faulk, Shield No. 8037, and police officers John Doe 1-10, stemming from an alleged January 27, 2020 arrest at the New York City Civil Court. Officer Pisano now moves pursuant to CPLR 3211(a)(7) and (8) to dismiss plaintiff's amended complaint. Plaintiff cross-moves pursuant to CPLR 306-b for an extension of time to serve the amended complaint upon Pisano. Both motions are opposed. For the following reasons, the motion is granted in part and the cross-motion is granted.
Plaintiff's opposing papers withdraws her claims for negligent infliction of emotional distress and negligent hiring, retention, training, and supervision.
FACTUAL ALLEGATIONS
Plaintiff alleges that on January 27, 2020, she was lawfully present inside 111 Centre Street in New York County, New York (premises) for a Housing Court matter (NYSCEF doc. no. 11, amended compl at ¶ 2). Plaintiff claims that a defendant court officer approached her and directed her to remove her purse (id., ¶ 3). According to plaintiff, the unidentified defendant court officer threw plaintiff's purse on the ground for no reason, causing plaintiff's belongings to spill out of her purse (id., ¶¶ 5-6). Plaintiff alleges that she did not have anything illegal on her person or in her purse. Plaintiff alleges that as she was gathering her belongings, another unidentified court officer began shouting at her and telling her she was not allowed to pick up her belongings in that area (id., ¶ 7). Plaintiff alleges that four additional defendant court officers approached plaintiff, tackling her to the ground, and handcuffing her (id., ¶ 8). Plaintiff further alleges that the defendant court officers pushed her face into the ground, put their knees into her back, pulled her shoulder sharply, and twisted her arms (id., ¶ 9). Plaintiff alleges that defendant officers searched plaintiff but did not find contraband or anything illegal on her, and that she did not resist while being placed under arrest (id., ¶ 10). Plaintiff further alleges that an ambulance thereafter brought plaintiff to the hospital to be treated for her injuries (id., ¶ 13). Plaintiff was taken back to a New York Police Department precinct, and eventually released with a Desk Appearance Ticket (id., ¶ 16). Plaintiff claims that the unidentified defendant court officers falsely stated to the New York County District Attorney's Office that plaintiff had committed a crime despite knowing that they lacked a legal and factual basis to allege that plaintiff committed any crime (id., ¶ 18). All charges against plaintiff were dismissed on or about February 8, 2021 (id., ¶ 19).
DISCUSSION
In support of the branch of his motion to dismiss pursuant to CPLR 306-b, Officer Pisano argues that plaintiff failed to serve the original summons and complaint and the supplemental summons and the amended complaint upon him within one hundred twenty days of commencing this action. Plaintiff argues that she attempted to move for an extension of time to serve Officer Pisano in September 2021, but the proposed order to show cause was returned for correction and not resubmitted. Plaintiff contends that Officer Pisano is a court officer with no searchable public address, and the Special Plan for Uniformed Court and Peace Officers in the Unified Court System requires a subpoena or court order to release his address. Plaintiff further argues that she was able to obtain plaintiff's address in April 2022, at which point plaintiff served Officer Pisano in Delaware with both the original and amended complaint on April 23 and April 30, 2022, respectively.
CPLR 306-b provides, in relevant portion, that a plaintiff shall serve the summons and complaint within 120 days after commencement of the action. "The court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service (CPLR 306-b). To establish good cause, plaintiff must demonstrate that she exercised reasonably diligent efforts in attempting to effect proper service of process upon the defendant (Moundrakis v Dellis, 96 A.D.3d 1026, 1026-27 [2d Dept 2012]). Where a movant seeks to extend the time to serve in the interest of justice, the court will consider the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of plaintiffs' request for the extension of time, any prejudice to defendant, and any other relevant factor (id.).
Here, plaintiff fails to demonstrate that she exercised reasonably diligent efforts in attempting to effect proper service of process upon Officer Pisano. There is no indication that plaintiff made an attempt to serve Officer Pisano within the statutory time frame. Plaintiff's argument that she filed a motion to extend the time to serve Officer Pisano does not fare any better, since the motion was returned for correction but never refiled. In any event, that motion was filed on September 28, 2021, after the time to serve Officer Pisano expired on September 24, 2021. Counsel for plaintiff further did not correspond with Officer Pisano's employer, by way of counsel, to obtain an address to serve Officer Pisano until January of 2022. Therefore, plaintiffs do not establish "good cause" to extend the time to serve. Nevertheless, the Court finds that plaintiff demonstrates that the time to serve should be extended "in the interest of justice." As discussed below, at least some of plaintiff's claims are meritorious, and there is no indication that Officer Pisano will be prejudiced by the delay. Accordingly, the branch of Office Pisano's motion to dismiss the amended complaint pursuant to CPLR 306-b is denied, and the cross-motion to deem the summons and complaint and supplemental summons and amended complaint is granted.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83. 87-88 [1994]; see also Chapman, Spira & Carson, LLC v Helix BioPharma Corp., 115 A.D.3d 526, 527 [1st Dept 2014]). However," 'factual allegations... that consist of bare legal conclusions, or that are inherently incredible.... are not entitled to such consideration'" (Mamoon v Dot Net Inc., 135 A.D.3d 656, 658 [1st Dept 2016], quoting Leder v Spiegel, 31 A.D.3d 266, 267 [1st Dept 2006], affd 9 N.Y.3d 836 [2007], cert denied 552 U.S. 1257 [2008]). On a motion pursuant to CPLR 3211(a)(7), "defendants bear the burden of establishing that the complaint fails to state a viable cause of action" (Connolly v Long Island Power Auth., 30 N.Y.3d 719, 728 [2018]).
Personal Involvement
"An individually named defendant cannot be held liable for a plaintiff's alleged Section 1983 claim absent personal involvement in the alleged constitutional deprivation" (Johnson v City of New York, 2017 WL 2312924, at *10 [SD NY May 26, 2017]; citing Grullon v City of New Haven, 720 F.3d 133, 138 [2d Cir. 2013]). As a corollary to the personal-involvement rule, complaints that rely on "group pleading" and "fail to differentiate as to which defendant was involved in the alleged unlawful conduct are insufficient to state a claim" (Adamou v Cty. of Spotsylvania, Va., 2016 WL 1064608, at *11 [SD NY Mar. 14, 2016], citing Atuahene v City of Hartford, 10 Fed.Appx. 33, 34 [2d Cir. 2001]).
False Arrest, Excessive Force, and Failure to Intervene
In support of his argument to dismiss plaintiff's false arrest, excessive force, and failure to intervene claims, Officer Pisano argues that the amended complaint does not allege any specific facts regarding Officer Pisano's participation in the acts that lead up to plaintiff's arrest and confinement, including Office Pisano's alleged use of excessive force and failure to intervene, or which defendant or defendants arrested her. Officer Pisano further argues that it is implausible that each defendant court officer participated in plaintiff's arrest. In opposition, plaintiff argues that the amended complaint alleges sufficient personal involvement because plaintiff alleges facts demonstrating that Officer Pisano was part of the group of court officers that assaulted her in the lobby of housing court. Plaintiff further argues that dismissal of plaintiff's claims for excessive force and failure to intervene are premature, and that discovery is required to determine which officers were present and failed to intervene.
Here, the amended complaint first alleges that several unidentified court officers tackled plaintiff to the ground. Specifically, plaintiff alleges that while she was collecting her belongings from the floor, when"[f]our additional defendant Court Officers then come over, tackle her to the ground, and unlawfully handcuff her, causing physical injury" (NYSCEF doc. no. 11, ¶ 8). This allegation identifies the defendants involved in the alleged incident in a conclusory manner and fails to establish the personal involvement of each court officer defendant. Plaintiff's allegation does not clarify whether Officer Pisano was part of the four officers, and it is otherwise unclear what role he played, if any, in that segment of the altercation. As such, the aforesaid allegation fails to place Officer Pisano on notice of the claims against him and consists of improper group pleading.
Plaintiff further alleges that "[t]he Defendant Court Officers push[ed] [plaintiff's] face into the ground, put their knees into her back, pull her shoulder sharply, and twist her arms, causing serious physical injury" (id., ¶ 9). The allegations that Officer Pisano was a court officer present at the scene of the incident, was acting in the scope of his duties, and was among the "Court Officers" that allegedly threw plaintiff to the ground and arrested her, coupled with the balance of plaintiff's group allegations, are sufficient to state a claim for false arrest and excessive force. While plaintiff does not specifically name Officer Pisano, the amended complaint clearly identifies Officer Pisano as a defendant "Court Officer" present at the incident. Indeed, plaintiff's reference to "defendant Court Officers" in the amended complaint suggest that each of the court officers she references were part of the group of court officers that arrested her (see Coppola v Town of Plattekill, 2018 WL 1441306, at *5 [ND NY Mar. 22, 2018] [Plaintiff's reference to "the officers" suggests that she alleges that each officer present on her property-including (the individual defendants)-participated in placing her in the ambulance and sending her to the hospital]). Accordingly, the Court finds that the amended complaint set out in sufficient detail the factual allegations on which plaintiff's claims for false arrest, excessive force, and failure to intervene against Officer Pisano are based, and further gives Officer Pisano fair notice of plaintiff's claims and their grounds (see Serrata v Givens, 2019 WL 1597297, at *5 [ED NY Apr. 15, 2019] ["the group allegations, combined with the individual allegations against defendants and the reasonable inferences drawn therefrom are sufficient to put these defendants on notice of their personal involvement in the cause of action"]).
Officer Pisano argues that plaintiff's failure to identify the role of each officer during the altercation is fatal to plaintiff's claims. Not so. At this stage in the matter, "[a] plaintiff need not establish which officer, among a group of officers, directly participated in the attack and which officer failed to intervene" (Paul v City of New York, 2017 WL 4271648, at *1 [SD NY Sept. 25, 2017]; Serrata v Givens, 2019 WL 1597297, *6 [ED NY 2019] ["the plaintiff, at this stage in litigation, need not pick out which of the officers actually used excessive force against him; it is adequate that he alleges that all of these officers were present at the time of his arrest and, at the very least, failed to intervene on his behalf"]; Marlin v City of New York, 2016 WL 4939371, at *14 [SD NY Sept. 7, 2016] ["While Plaintiff, at this stage in litigation, cannot pick out which of these officers actually threw him to the floor, applied force to his elbow, and handcuffed him, he does allege that all of these officers were present at the time of his arrest and, at the very least, failed to intervene on his behalf"]). Accordingly, the branches of Officer Pisano's motion to dismiss plaintiff's false arrest, excessive force, failure to intervene, and violation of plaintiff's fourth and fourteenth amendment rights, is granted, to the extent those claims are premised on paragraph 8 of the amended complaint.
Unlawful Search
In support of his argument to dismiss plaintiff's claims for unlawful stop, question, and frisk and unlawful search, Officer Pisano argues that plaintiff fails to allege his personal involvement in the alleged search. Officer Pisano further argues that the alleged search was reasonable. Officer Pisano argues that plaintiff fails to allege harm that is separate and distinct from her general loss of liability under her claim for false arrest. In opposition, plaintiff argues that her claim for unlawful search should not be dismissed because plaintiff's arrest was unlawful, and thus, there was no probable cause to search plaintiff.
Plaintiff alleges that "[a]s a result of the aforementioned conduct of defendants, plaintiff sustained injuries, including but not limited to physical, economic, emotional and psychological injuries" (amended compl., ¶ 44) While plaintiff alleges that she was unlawfully arrested, she fails to allege any harm that she suffered from the alleged illegal search to separate it from her general loss of liberty stemming from the arrest (see Faraone v City of New York, 2016 WL 1092669, at *4 [SD NY Mar. 21, 2016] [a plaintiff alleging a cause of action for unlawful search must allege a harm independent of the general loss of liberty from their arrest]; Cordero v City of New York, 282 F.Supp.3d 549, 564 [ED NY 2017] [on a motion for summary judgment, dismissing plaintiff's claim for false arrest, finding that even if a stop and frisk had occurred, the harm suffered would be indistinguishable from the harm caused by the alleged false arrest]). Accordingly, the branch of Officer Pisano's motion to dismiss plaintiff's claim for unlawful search is granted and that claim is dismissed.
Fair Trial
In support of the branch of his motion to dismiss plaintiff's claim for the violation of the right to a fair trial, Officer Pisano argues that plaintiff fails to identify how Officer Pisano was involved in the alleged falsification or transmittal of false information. In opposition, plaintiff argues that plaintiff would not have been arrested despite committing no crime without the "arresting officers" fabricating allegations.
"When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983" (Ricciuti v New York City Transit Auth., 124 F.3d 123, 130 [2d Cir. 1997] [citations omitted]). "A fair trial claim cannot survive a motion to dismiss based only on broad and conclusory allegations the officers created 'false narratives' about what they saw" (Marom v. City of New York, 2016 WL 916424, at *13-14 [SD NY Mar. 7, 2016], citing Abdul-Rahman v. City of New York, 2012 WL 1077762, at *12 [ED NY Mar. 30, 2012] [dismissing the plaintiff's fair trial claim "because he has presented only the most conclusory and generalized allegations, failing to specify in what way the statements, information, or testimony were false or even in what material respect the charges against him were false"]).
Plaintiff alleges that "Defendants, individually and collectively, manufactured and/or withheld false evidence and forwarded this false evidence to prosecutors in the New York County District Attorney's Office" (amended compl, ¶ 46), that "Defendants filled out false and misleading police reports and forwarded them to prosecutors in the New York County District Attorney's Office" (id., ¶ 47), and that "Defendants signed false and misleading criminal court affidavits and forwarded them to prosecutors in the New York County District Attorney's Office" (id., ¶ 48). Plaintiff's allegations are conclusory and generalized. Plaintiff fails to allege what statements were made, if any, how the statements, information, or testimony were false, or how the charges against her were false. Moreover, plaintiff fails to allege how Officer Pisano was involved in the alleged falsification or transmittal of false information. Plaintiff's cursory pleading is not sufficient to plausibly allege a claim for denial of his right to a fair trial (see Hutchins v Solomon, 2018 WL 4757970, at *16 [SD NY Sept. 29, 2018] ["Conclusory statements that officers fabricated evidence do not suffice to state a claim for the denial of a fair trial"]; Longo v Ortiz, 2016 WL 5376212, at *6 [SD NY Sept. 26, 2016] [holding that the plaintiff failed to state denial of fair trial claim where he alleged "he was denied the right to a fair trial... when the defendants fabricated evidence, gave false testimony, and made false extrajudicial statements... to be used against [the plaintiff] at trial"]; Pesola v City of New York, 2016 WL 1267797, at *11 [SD NY March 30, 2016] [dismissing fair trial claim where "plaintiff fails to assert how, in what way, or to what effect, the defendants falsified these reports and to whom the reports were forwarded"]). Accordingly, plaintiff's claim for a violation of the right to a fair trial is dismissed for failure to state a claim.
Malicious Prosecution
To establish a malicious prosecution claim under New York law, a plaintiff must prove "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions" (Manganiello v New York City, 612 F.3d 149, 161 [2d Cir. 2010] [citations and internal quotations omitted]).
The amended complaint alleges that "[t]he Defendant Officers falsely stated to the New York County District Attorney's Office that Plaintiff had committed a crime despite knowing that they lacked a legal and factual basis to allege that Plaintiff committed any crime" (amended compl, ¶ 18), and that "[t]here was actual malice and an absence of probable cause for the criminal proceeding against plaintiff and for each of the charges for which they were prosecuted" (id., ¶ 78). Here, the amended complaint does not plead any facts establishing that Officer Pisano was responsible for the prosecution of plaintiff, in that the amended complaint fails to allege what Officer Pisano did to make him liable for malicious prosecution (see Myers v Moore, 326 FRD 50, 60 [SD NY 2018] ["Plaintiff engages in group pleading, lumping the three defendants together without pleading facts demonstrating what each did that makes him liable for malicious prosecution.... Accordingly, the [a]mended [c]omplaint does not sufficiently plead a malicious prosecution claim"] [citations omitted]). Further, the amended complaint recites the general elements of a malicious prosecution claim, and offers only conclusory allegations (see Williams v City of Syracuse, 2020 WL 6504630, at *2 [ND NY Nov. 5, 2020] [dismissing claims for malicious prosecution where plaintiff's "recites the general elements of a malicious prosecution claim, and offers only conclusory allegations"]; Longo, 2016 WL 5376212, at *4 ["Plaintiff's allegations as to false or fabricated information are entirely conclusory and generalized and do not contain the specificity required to state a claim for malicious prosecution"]; Balde v Rickford, 2019 WL 2225397, at *8 [SD NY May 23, 2019] [dismissing plaintiff's claim for malicious prosecution on the basis that the complaint failed to allege any conduct on behalf of individual police officers]).
Moreover, plaintiff fails to state a claim against Officer Pisano for malicious prosecution because plaintiff's conclusory allegations are not enough to infer actual malice on the part of Officer Pisano. Indeed, the conclusory allegations surrounding plaintiff's malicious prosecution claim do not "[a]llege any facts sufficient to rise to the level of 'actual malice'" (see Santoro v Town of Smithtown, 40 A.D.3d 736, 738 [2d Dept 2007]). As the amended complaint fails to meet the basic requirements to state a malicious prosecution claim, plaintiff's claim for malicious prosecution against Officer Pisano is dismissed.
Accordingly, it is hereby
ORDERED that plaintiff's cross-motion to deem the summons and complaint and supplemental summons and amended complaint on April 23, 2022, and April 30, 2022, as timely served under CPLR 306-b, is granted; and it is further
ORDERED that the branch of Officer Pisano's motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint is granted to the extent that plaintiff's claims for false arrest, excessive force, failure to intervene, and violation of plaintiff's fourth and fourteenth amendment rights, insomuch as those claims are premised on paragraph 8 of the amended compliant, unlawful search, denial of right to a fair trial, and malicious prosecution are dismissed; and it is further
ORDERED that Officer Pisano shall file and serve his answer within twenty (20) days; and it is further
ORDERED that the parties shall appear for a preliminary conference on September 26, 2023, at 9:30 a.m.; and it is
ORDERED that Officer Pisano shall serve a copy of this decision and order upon all parties, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the Court.