Opinion
Index No. 510515/2022
10-05-2023
Isaac Okoli, Millycent Atuegwu, Victoria Okoli, Gabriel Okoli, Samuel Okoli and P.O. (an infant whose Parents and Natural Guardians are Issac Okoli and Millycent Atuegwu), Plaintiffs, v. The City of New York and Joseph E. Kenny (in his Individual and Official Capacities), Defendants.
For Plaintiffs Isaac Okoli et al.: Hugo Gabriel Ortega of Tanner & Ortega, LLP For Defendants NYC et al.: Kenneth S. Sasmor of New York City Law Dept.
Unpublished Opinion
For Plaintiffs Isaac Okoli et al.: Hugo Gabriel Ortega of Tanner & Ortega, LLP
For Defendants NYC et al.: Kenneth S. Sasmor of New York City Law Dept.
Patria Frias-Colón, J.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 13-17; 23-24 by Plaintiffs
NYSCEF Doc #s 21; 25 by Defendants
Upon the foregoing papers and after oral argument on August 9, 2023, Plaintiffs Isaac Okoli, Millycent Atuegqu, Victoria Okoli, Gabriel Okoli, Samuel Okoli, and P.O. (an Infant whose Parents and Natural Guardians are Isaac Okoli and Millycent Atuegwu) (collectively Plaintiffs) move for an Order, pursuant to CPLR § 3025 (b), permitting Plaintiffs to amend the complaint to include a cause of action under 42 U.S.C. § 1983(Mot. Seq. # 2). Defendants The City of New York (the City) and Joseph E. Kenny (in his Individual and Official capacities) (Kenny) (collectively Defendants) oppose the motion. For the following reasons stated herein, the Plaintiffs' motion is DENIED in its entirety.
Background
On April 11, 2022, Plaintiffs commenced the instant action to recover damages for personal injuries sustained when police officers employed by the New York City Police Department (NYPD) executed a "no knock warrant" at Plaintiffs' residence, located at 22-29 Dix Avenue, Apt. #1, in Far Rockaway, New York, on or about December 12, 2017. On or about May 6, 2021, Plaintiffs served a Notice of Claim on the City. The original verified complaint alleges four causes of action: (1) defamation per se against all Defendants; (2) deprivation of federal civil rights under 42 U.S.C. § 1983 against all Defendants (Monell claim); (3) intentional infliction of emotional distress against all Defendants; and (4) negligent infliction of emotional distress against all Defendants. Id. Per Plaintiffs' complaint, the Monell claim and claims for emotional distress arose from the December 12, 2017, incident and the claim for defamation per se arose from statements made in several articles and an April, 2021 press conference. On July 29, 2022, issue was joined when Defendants served a Verified Answer with affirmative defenses and specifically raised the affirmative defense that "[t]he Monell cause of action (second cause of action) is barred by the [s]tatute of [l]imitations."
NYSCEF Doc No. 1, ¶ 11.
Id. at ¶ 17.
Id. at ¶¶ 43, 67, 76.
Id. at ¶¶ 13-16, 23-24.
NYSCEF Doc No. 4 at ¶ 11.
Pursuant to CPLR § 3211 (a) (7), on August 26, 2022, Defendants moved (Mot. Seq. # 1) to (1) dismiss the entire complaint as against Defendant Dermot F. Shea (in his Individual and Official Capacities) (Shea); (2) dismiss the second, third, and fourth causes of action of the complaint as against Defendant Kenny; and (3), with respect to the City, dismiss the first cause of action as it concerns Shea, and dismiss the third and fourth causes of action against the City. By Decision and Order dated May 21, 2023, without opposition this Court granted Defendants' motion (Mot. Seq. # 1) in its entirety and permitted the instant action to continue "as to the first cause of action against Defendant Joseph E. Kenny; the first cause of action against Defendant NYC, insofar as it concerns the statements made by Defendant Joseph E. Kenny; and the second cause of action against Defendant NYC."
NYSCEF Doc No. 18.
Pursuant to 42 U.S.C. § 1983, Plaintiffs now move to amend the complaint to allege a violation of Plaintiffs' constitutional rights against Defendant Kenny (proposed Monell claim), and to "add additional supporting facts to their Monell claim regarding existing systemic racial bias in the NYPD in the promulgation and enforcement of the No-Knock Warrant policy." Plaintiffs contend that they are entitled to leave to amend the complaint to add a new claim when it is based on identical facts, and any new facts added merely amplify the existing claims. Plaintiffs also argue that the original Monell claim accrued on April 14-15, 2021, a little over 2 years after the alleged defamatory statements were made, and thus the proposed Monell claim is within the 3 year statute of limitations. Plaintiffs now assert that Kenny's defamatory conduct was derived from his deliberate indifference to plaintiffs' 14th Amendment rights to equal protection and was a product of unconstitutional policies, customs and practices established by the City and its senior Police Officials, including Kenny. Plaintiffs further assert that the new Monell claim is also based on the same occurrences-namely the underlying discriminatory and defamatory statements made by Kenny during a press conference, set forth in the original complaint, thereby putting Defendants on notice of the facts related to those occurrences. Accordingly, Plaintiffs claim that Defendants would not be prejudiced because discovery has not yet been conducted and the new claim is well within the statute of limitations. Plaintiffs also argue that the new, amplified facts do not change facts related to the underlying transactional occurrence. As a result, the proposed Monell claim relates back to the initial filing of the original Monell claim in the complaint.
NYSCEF Doc No. 14 at ¶ 7.
Id. at ¶ 23.
NYSCEF Doc No. 14 at ¶ 16.
Id. at ¶ 24.
Id. at ¶ 29.
Id. at ¶ 28.
In opposition, Defendants contend that Plaintiffs' claims are palpably insufficient and devoid of merit, specifically that Plaintiffs' proposed amended second cause of action purports to connect its Monell claim to the execution of the no-knock warrant back in December 2017, is beyond the three-year statute of limitations for § 1983 claims because the date of the warrant execution is the accrual for the Monell claim. Defendants further argue that even if the proposed Monell claim did not have procedural issues, it would fail on the ground of implausibility under the Iqbal pleading standard applicable to § 1983 and the proposed Monell claim as pleaded is bereft of an evidence-based recitation of facts moored to a constitutional violation and consists of conclusory statements which cannot be credited. As such, the proposed Monell claim would fail on the merits.
NYSCEF Doc No. 21 at ¶ 3.
Id. at ¶ 4.
In reply, Plaintiffs claim Defendants mislead the Court by connecting the Monell claim to the execution of the warrant without any explanation. Plaintiffs reiterate that the proposed Monell claim is an Equal Protection claim made in connection with the actual deliberate indifference underpinning Defendant Kenny's per-se defamatory statements imputing criminal conduct upon Plaintiffs and arose on April 15, 2021 and it is a § 1983 defamation claim exclusively. Plaintiffs also assert that it is inappropriate to read the proposed Monell claim as one sounding in defamation and that the proposed Monell claim is meritorious and satisfies the Iqbal pleading standard. Finally, Plaintiffs propose the applicable three-year statute of limitations can be extended based upon the continuing violation doctrine.
NYSCEF Doc No. 23 at ¶ 6.
Id. at ¶ 7.
Id. at ¶ 34.
Id. at ¶ 32.
Defendants obtained permission to file a sur-reply via oral application on July 26, 2023. Defendants therein assert that the proposed amended complaint annexed to Plaintiffs' reply papers is a modified version of the proposed amended complaint annexed to Plaintiffs' moving papers and that Plaintiffs incorporated entirely new paragraphs 73 through 80 in an apparent effort to cure what they perceived to be potentially fatal infirmities in their pleadings. Defendants assert that the allegations contained therein are conclusory and do not comply with the pleadings requirements under § 1983 as related to a defamation claim. As such, Defendants argue the claims proffered are palpably insufficient and devoid of merit and Plaintiffs' motion should be denied.
NYSCEF Doc No. 25 at ¶ 1.
NYSCEF Doc No. 24.
NYSCEF Doc No. 16.
NYSCEF Doc No. 25 at ¶ 5.
Id. at ¶ 7.
Id. at ¶ 9.
Discussion
It is well established that although leave to amend a complaint should be freely given (see CPLR § 3025[b]), a Court should deny a motion for leave to amend a complaint if the proposed amendment is palpably insufficient, would prejudice or surprise the defendant, or is patently devoid of merit. Martin v Village of Freeport, 71 A.D.3d 745, 745 (2d Dept. 2010); see Vidal v Claremont 99 Wall, LLC, 124 A.D.3d 767, 767-768 (2d Dept. 2015). Further, the Appellate Division, Second Department has held that:
A court hearing a motion for leave to amend will not examine the merits of the proposed amendment "unless the insufficiency or lack of merit is clear and free from doubt. In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied." Ricca v Valenti, 24 A.D.3d 647, 648 (2d Dept. 2005) (quoting Norman v Ferrara, 107 A.D.2d 739, 740 [2d Dept. 1985]).
While there is no codified statute of limitations for claims brought under 42 U.S.C. § 1983, federal practice imputes the analogous state period for personal injury claims. Plumey v New York State, 389 F.Supp.2d 491, 497 (S.D.NY 2005). In New York, the statute of limitations period is three years. Id., citing CPLR § 214 (5). Thus, the relevant statute of limitations for a 42 U.S.C. § 1983 claim is three years. The three-year period begins to run as soon as plaintiff knows or has reason to know of the injury giving rise to the claim. Hernandez, 2022 WL 2047577, *2, quoting Milan v Werthweimer, 808 F.3d 961, 963 (2d Cir. 2015). Where a § 1983 claim is based on an alleged improper enforcement of a warrant, the Plaintiffs should have been aware at the time the search warrant was presented and the search executed that there was a possible violation of their rights, thus the claim accrues on the date of the search and seizure.
see Hernandez v City of New York, 2022 WL 2047577, *2 (S.D.NY June 7, 2022) ("Section 1983 claims brought in New York are subject to a three-year statute of limitations"); see also DeSuze v Ammon, 990 F.3d 264, 271 (2d Cir. 2021).
Triestman v Probst, 897 F.Supp. 48, 50 (N.D.NY 1995); see Gibbs v Albany Police Dept., 1997 WL 420360, *1 (N.D.NY July 21, 1997) ("Moreover, claims which allege an unlawful search on the part of a defendant accrue on the date of the search at issue"); Tellier v Krimmer, 1996 WL 518108, *1 (E.D.NY Sept. 4, 1996); Jennings v City of New York, 1991 WL 207620, *7-8 (S.D.NY Oct. 1, 1991); see also Matthews v Town of Jewett, 2011 WL 2973618, *2-3 (N.D.NY July 21, 2011) (holding that the continuing violations doctrine, which is an exception to the above accrual date, does not apply because the acts at issue did not "constitute a 'continuous, ongoing policy' of civil rights violations executed by the Defendants").
However, a defamation cause of action is governed by a one-year statute of limitations. Melious v Besignano, 125 A.D.3d 727, 728 (2d Dept. 2015) (citing CPLR § 2015 [3]). Such a cause of action accrues at the time the alleged statements are originally uttered. Id. To state a cause of action alleging defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization to a third party, constituting fault as judged by a negligence standard, and it must either cause special harm or constitute defamation per se. Rosner v Amazon.com, 132 A.D.3d 835, 836-837 (2d Dept. 2015). Because falsity is a necessary element of defamation, only statements that allege facts, which can be proven false, can be the subject of a defamation action. see Id.
This is different from the elements required to prove a Monell claim under 42 U.S.C. § 1983, which requires an official government policy, custom or widespread practice to cause the violation of the plaintiff's constitutional rights. Crooks v City of New York, 189 A.D.3d 769, 771 (2020), quoting De Lourdes Torres v Jones, 26 N.Y.3d 742, 762 (2016). Thus, factual allegations that one or more police officers violated a plaintiff's constitutional right is insufficient to impose liability against the City under 42 U.S.C. § 1983. See Monell v Dept. of Social Servs. of City of New York, 436 U.S. 658, 694 (1978).
Pursuant to CPLR § 203 (f), presuming that the original pleading gave notice of the transactions or events to be proved in the amended pleading, a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed. CPLR § 203 (f). Thus, based upon the relation-back doctrine, a plaintiff could interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint. Martin v City of New York, 153 A.D.3d 693, 694 (2d Dept. 2017) (quoting Moezinia v Ashkenazi, 136 A.D.3d 990, 992 [2d Dept. 2016]).
Here, it is apparent that Plaintiffs' original and proposed Monell claims are based upon the execution of the no-knock warrant on December 12, 2017. Thus, the original Monell claim accrued on December 12, 2017. As such, the statute of limitations for Plaintiffs' original Monell claim would have expired on December 12, 2020. Since the instant action was commenced by the filing of a summons and verified complaint on April 11, 2022, the original Monell claim is time-barred. Thus, even if Plaintiffs' proposed Monell claim provided Defendants with sufficient detail of the incident, it would also be time-barred pursuant to CPLR § 203 (f) because there would be no cause of action that is timely interposed in the original complaint for it to relate back to and the proposed Monell claim itself would not be timely if interposed in the original complaint.
see NYSCEF Doc Nos. 15-16.
Based on Executive Order No. 202.8, which was extended through multiple orders through November 3, 2020, if the COVID-19 toll were to apply, which tacks on 228 days to the end of the statute of limitations period, the statute of limitations would have expired on July 28, 2021 (see Williams v Ideal Food Basket, LLC, __ A.D.3d ___, 2023 NY Slip Op 04436 [2d Dept 2023]; Brash v Richards, 195 A.D.3d 582 [2021]; Matter of Roach v Cornell University, 207 A.D.3d 931, 932-933 [3d Dept 2022]). However, whether the toll applies or not, the original Monell claim is untimely.
The court notes that to the extent that this appears to be inconsistent with the court's prior order in mot. seq. one (NYSCEF Doc No. 18), the City did not seek to dismiss Plaintiffs' Monell claim as untimely in its motion to dismiss, and thus the issue of timeliness of the Monell claim was not before the court (see, e.g., Rosenblatt v St. George Health & Racquetball Assocs., LLC, 119 A.D.3d 45, 52-54 [2014] ["A court, however, is generally limited to the issues or defenses that are the subject of the motion"]). However, the court notes that the City explicitly raised the statute of limitations issue with respect to the Monell claim as an affirmative defense in its verified answer (NYSCEF Doc No. 4, ¶ 11) and in opposition to the instant motion (NYSCEF Doc No. 21, ¶¶ 3, 10 & n 2).
The remainder of Plaintiffs' arguments consist of an attempt to frame the proposed Monell claim as a defamation claim in the context of an equal protection claim to make the proposed Monell claim timely. This Court will not permit Plaintiffs to make an end-run around the statute of limitations by couching the proposed Monell claim as a defamation claim. While the proposed Monell claim would be timely if it were truly a defamation claim, nowhere in the proposed amended complaint annexed to Plaintiffs' moving papers do Plaintiffs allege any facts to support a defamation claim. As such, pursuant to CPLR § 203 (f), while the defamation claim is timely, the statute of limitations for defamation cannot be applied to the proposed Monell claim, to make the claim timely. See, e.g., Wrase, 271 A.D.2d at 441; Milone, 78 A.D.2d at 549.
See, e.g., Wrase v Bosco, 271 A.D.2d 440, 441 (2d Dept. 2000); Costal Communication Serv., Inc. v New York City Dept. of Info. Tech. & Telecommunications, 44 A.D.3d 309, 309 (1st Dept. 2007); Letourneau v Town of Berne, 56 A.D.3d 880, 881-882 (3d Dept. 2008) (holding that a claim was properly dismissed as time-barred as the factual allegations did not fit the mislabeled cause of action to avoid the application of a shorter statute of limitations); Milone v Jacobson, 78 A.D.2d 548, 549 (2d Dept. 1980) (mislabeling a cause of action to avoid a one-year statute of limitations).
see NYSCEF Doc No. 16.
While Plaintiffs briefly raise the above argument in support of the instant motion in two paragraphs of a thirty-two-paragraph affirmation, on its face, the language Plaintiffs cite in the proposed amended complaint reads as an equal protection claim. What is even more troubling is that Plaintiffs submitted a modified proposed amended complaint with their reply papers that added entirely new paragraphs in an attempt to cure deficiencies that would allow the proposed Monell claim to be construed as a defamation claim. However, the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion. Wells Fargo Bank, N.A. v Marchione, 69 A.D.3d 204, 206 (2d Dept. 2009) (quoting Matter of Harleysville Ins. Co. v Rosario, 17 A.D.3d 677, 677-678 [2d Dept. 2005]). Moreover, evidence offered solely on reply is entitled to no consideration by the Court. Forbes v New York City Transit Authority, 88 A.D.3d 546, 547 (1st Dept 2011). Thus, this Court will not consider Plaintiffs' modified proposed amended complaint submitted in reply.
NYSCEF Doc No. 14 at ¶¶ 16, 24.
NYSCEF Doc No. 16 at ¶ 71.
NYSCEF Doc No. 24 at ¶¶ 73-80.
The branch of Plaintiffs' motion to amend the original Monell claim to amplify the facts in the original complaint is also denied given it is untimely and the proposed amendments are largely irrelevant to Plaintiffs' alleged injuries. See Martin, 153 A.D.3d at 694-695; Moyse v Wagner, 66 A.D.3d 976, 976-977 (2d Dept. 2009).
This Court has considered the parties' remaining contentions and finds them to be without merit. Therefore, Plaintiffs' motion for leave to amend the complaint herein is denied in its entirety.
This constitutes the Decision and Order of the court.