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United States District Court, Southern District of New York

May 6, 2003


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


Ataullah Mahmood brings suit under section 1983, Title 42 of the United States Code, for excessive force, unreasonable search and seizure, malicious prosecution, false arrest and false imprisonment. He also brings state law claims against Sergeant Thomas Fitzgibbon for, inter alia, assault and battery and seeks to hold the City of New York vicariously liable under the doctrine of respondeat superior. The City of New York seeks summary judgment dismissing the state law claims brought against it on this basis. For the following reasons, the City's motion is granted and plaintiff's respondeat superior claims against the City are dismissed.

I. FACTS*fn1

This action arises from an altercation between Mahmood and Fitzgibbon that took place on November 30, 2000, at approximately 7:30 p.m. See Def. 56.1 ¶ 6. At the time of the incident, Fitzgibbon was employed by the New York Police Department ("NYPD") as a transit police officer holding the rank of sergeant. See id. ¶ 3. Fitzgibbon was off-duty from his usual patrol located in the Bronx. See id. ¶ 4. He was wearing civilian clothes that day as he was working in an undercover capacity.*fn2

Mahmood was driving a truck eastbound on 48th Street in Manhattan when he pulled behind Fitzgibbon's car, a Dodge Caravan, which was stopped at a red light. See id. ¶ 10. The light turned green and Mahmood honked his horn twice to alert Fitzgibbon to that fact. See id. ¶ 11. Fitzgibbon then left his vehicle and approached the driver's side of Mahmood's vehicle, displaying his police badge and identifying himself as a police officer. See id. ¶ 11-12. Without justification, Fitzgibbon attempted to punch Mahmood through an open window on the driver's side.*fn3 See id. ¶ 14. Fitzgibbon then ordered Mahmood to pull his truck to the side of the road, which he did. See id. ¶ 15.

At this point, Fitzgibbon pulled Mahmood from his vehicle, assaulted him, yelled at him, and beat him. See id. ¶ 16. At no time did plaintiff commit any crime or violation which would warrant his being stopped, questioned or assaulted, nor was he charged with any crime or violation. See Pl. 56.1 ¶¶ 12-13. In fact, during the course of the incident, plaintiff did not engage in any illegal, unlawful or suspicious activity that would have given the police cause to stop him, use physical force against him, or arrest him. See id. ¶ 14.

After the incident, Mahmood drove to a nearby NYPD precinct house and reported that he had been assaulted by someone identifying himself as a police officer. See Def. 56.1 ¶ 17. The NYPD conducted an investigation as a result of plaintiff's complaint. See id. ¶ 20. In the course of that investigation, it was determined that Fitzgibbon had not notified the NYPD that he had identified himself as a police officer to a civilian. See id. ¶ 21. Fitzgibbon received a Command Discipline for having "failed to notify the Department after being involved in a traffic dispute which required his identifying himself as a member of the service." See Supervisor's Complaint Report/Command Discipline Election Report, Ex. C to Houlding Aff.


Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002).*fn4

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola, 298 F.3d at 160 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and he "`may not rely on conclusory allegations or unsubstantiated speculation.'" Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir.), cert. denied, 534 U.S. 891 (2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce significant admissible evidence that supports his pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).

In determining whether a genuine issue of material facts exists, the court is to construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk, 315 F.3d at 175. Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel, 310 F.3d at 286 (emphasis added) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).


According to well-established New York law, an employer is only liable for the actions of an employee where the employee was engaged in the furtherance of the employer's business and the employer was, or could have been, exercising some control, directly or indirectly, over the employee's activities. See Turk v. McCarthy, 661 F. Supp. 1526, 1535 (E.D.N.Y. 1987) (citing Lundberg v. State of New York, 306 N.Y.S.2d 947, 950 (1969)). One New York court has formulated the scope of employment rule as follows:

an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. Thus, where an employee's conduct is brought on by a matter wholly personal in nature, the source of which is not job-related, his actions cannot be said to fall within the scope of his employment.
Stavitz v. City of New York, 471 N.Y.S.2d 272, 274 (1st Dep't 1984) (holding that City of New York was not liable for assault committed by off-duty police officer on neighbors with whom the officer had a personal disagreement).*fn5

Plaintiff argues that Fitzgibbon was furthering police business when he verbally identified himself as a police officer, showed plaintiff his badge, and ordered him to pull over to the side of the road. Fitzgibbon's identification as a police officer has no bearing on whether he was acting within the scope of his duty. See Turk, 661 F. Supp. at 1536 ("[Defendant's] identification of himself as a police officer was manifestly designed as a means of trying to obtain special treatment from the security guards and can in no way be properly interpreted as an action designed to further the interests of the NYCPD."); Nisbett v. State of New York, 222 N.Y.S.2d 867, 874 (Ct. Cl. 1961) ("Whether [police officer] did or did not so identify himself has no bearing on his status as acting within the scope of his duty."). Although Fitzgibbon's self-identification as a police officer may have facilitated his subsequent assault on Mahmood,*fn6 it does not, by itself, establish that he was furthering the City's interest in maintaining law and order. See Perez v. City of New York, No. 94 Civ. 2061, 1996 WL 103836, at *3 (S.D.N.Y. Mar. 8, 1996) ("[T]he act of identifying oneself as a police officer, producing a shield, and executing an arrest, because one's employment with the City confers the authority to do so, does not automatically create liability for the City."); Stavitz, 471 N.Y.S.2d at 274 ("There was no automatic liability attaching to the City when defendant . . . produced his shield and arrested plaintiffs, simply because his employment as a police officer by the City conferred upon him the authority to make arrests."). The fact that a police officer uses, or abuses, his authority may be relevant in deciding whether he was acting under color of state law. It is not relevant, however, in determining whether the actions taken were within the scope of his employment.

Contrary to plaintiff's argument, Fitzgibbon's actions in detaining and assaulting him were not in furtherance of any police business. Rather, they were the result of Fitzgibbon's personal rage brought about by plaintiff's honking. This conclusion is further supported by the fact that, at the time of the incident, plaintiff, by his own admission, denies any wrongdoing that would justify detaining and/or arresting him. The fact that Fitzgibbon himself described his actions as "consistent with his prior and usual `on duty' conduct," Pl. Mem. at 10, does not change this result. See Longin v. Kelly, 875 F. Supp. 196, 203 (S.D.N.Y. 1995) ("[Defendant's] subjective characterization of the incident is not dispositive of the issue of whether he acted within the scope of his employment."); Johnson, 702 N.Y.S.2d at 636-37 ("[Defendant's] testimony that he employed his police training and that he believed that he was acting as a police officer, is conclusory.").

Although each case is fact-specific, the facts here most closely approximate the following circumstances found in Pekarsky v. City of New York, 659 N.Y.S.2d 496 (2d Dep't 1997):

On September 5, 1990, at approximately 9:00 P.M., the defendant Kenneth L. Bradley, a Deputy Inspector of the New York City Police Department, was involved in a minor traffic accident with the plaintiff's intestate, Leonid Issak Pekarsky. At the time of this incident, Bradley was off-duty and on vacation. Bradley exited his vehicle to ascertain the damage and walked over to Pekarsky's vehicle. He admitted that he did not intend to issue a summons or effect an arrest. Bradley then observed Pekarsky reach under his seat. Fearing that Pekarsky was going to retrieve a weapon, Bradley drew his service revolver, indicated that he was a police officer, and displayed his badge. Pekarsky exited his own vehicle and, allegedly, advanced toward Bradley with a tire iron. When Pekarsky raised the tire iron, Bradley fired his weapon, causing Pekarsky's death.
Id. at 497. The court found that "Bradley was not acting in an official capacity on a police matter when he approached Pekarsky's vehicle, and was not acting in furtherance of his duties as a police officer when he fired his gun." Id. Although the element of self-defense is lacking here, Fitzgibbon (like Bradley) was not furthering police business when he detained and assaulted Mahmood. Rather, he was acting out of personal rage.*fn7 Accordingly, Fitzgibbon's tortious actions were not within the scope of his employment and the City of New York cannot be held vicariously liable for them.


For the foregoing reasons, plaintiff's respondeat superior claims against the City of New York are dismissed. The Clerk of the Court is directed to close this motion. A status conference is scheduled for May 20, 2003 at 4:30 p.m.

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