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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 ...

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