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February 7, 2005.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge



A. Introduction

  Plaintiffs Eliezer Wahhab and Amehra Brown claims that Wahhab was assaulted by security guards while they and their family were at a restaurant in the food court of a shopping mall. After an altercation arose between Wahhab and the restaurant manager over food quality, security guards, some of whom were off-duty police officers and some of whom were civilian guards responded. Wahhab alleges that he was forced to accompany the guards to a security room toward the rear of the mall, where he was severely beaten and suffered injuries including a shattered jaw. Plaintiffs filed suit against the restaurant, its manager, various security guards, the guards' security company, the security company's owner, the mall, and the City of New York. Page 2

  B. Procedural History

  Eliezer Wahhab and Amehra Brown filed this action against the above-named defendants on February 4, 2002. On April 2, 2004, The Gallery at Fulton St., LLC, ("Gallery," also hereinafter referring to the shopping mall itself), owner of the shopping mall where the incident occurred, joined issue with the complaint, requesting a jury trial and asserting cross-claims against The City of New York ("City" or "City of New York"), Samuel Rushing ("Rushing"), Top Potato Plus ("Top Potato"), Theodore Priftakis ("Priftakis"), Cannady Security Co. ("Cannady Security"), Henry Cannady ("Cannady"), and Jovan Rouse ("Rouse"). Top Potato is the restaurant in the food court of the Gallery where the altercation took place between plaintiff Wahhab and defendant Priftakis, manager of Top Potato. Cannady Security is the employer of the civilian and off-duty security guards at the mall, Cannady being the owner of Cannady Security.

  Top Potato and Priftakis answered the complaint on April 4, 2002. The City of New York responded with its Answer to the Complaint on July 11, 2002.

  This case was transferred from Judge Batts to the undersigned in July 2002. The matter was placed on the suspense calendar from September 28, 2002 until November 22, 2002, while the criminal charges against plaintiff Wahhab were resolved. Thereafter, an Amended Complaint was filed by plaintiffs on December 23, 2002, which added New York City Police Officer David E. Martin ("Martin"), Shield #88157 as a defendant.

  Cannady Security, Cannady, and Rouse answered the amended complaint on January 13, 2003. Top Potato and Priftakis filed an answer to the amended complaint on March 3, 2003. On March 28, 2003, The City of New York filed an answer to the amended complaint. All defendants then moved for summary judgment, and on May 20, 2004, defendants Priftakis and Top Potato were dismissed by Stipulation.

  C. Facts

  The incident leading to the present action occurred in the afternoon of October 8, 2001 at The Gallery at Fulton Street, a shopping mall in Brooklyn. Plaintiffs Eliezer Wahhab and Amehra Brown, along with one or two of their children, were at the Top Potato concession stand in the food court of The Gallery at Fulton Street.*fn1 Wahhab and Top Potato Manager Theodore Priftakis became involved in a quarrel concerning unsatisfactory food and soft drinks. Wahhab requested but was denied a refund, and, upset with the service, knocked a container of straws off a counter and onto the floor. Page 3

  Virtually all of the facts that follow are in dispute. Plaintiffs claim that as Wahhab was preparing to leave, defendants Rushing and Martin, who were off-duty police officers moonlighting as security guards at the Gallery, appeared. "One of them showed a badge of some sort" and bumped chests with Wahhab, blocking his path. (Wahhab Dep. at 26-27). They were in plainclothes on the date of this incident. Plaintiffs allege that when Wahhab requested them to identify themselves and leave him alone, the response was less than conciliatory: "We have a smart ass here. . . . You're not going anywhere." (Wahhab Dep. at 28). Defendant Rushing, though, testified in his deposition that he identified himself to Wahhab by stating "I'm from security" and that Wahhab did not ask Rushing or Martin to identify themselves. (Rushing Dep. at 125-26). Jovan Rouse ("Rouse"), lead security guard present at the time, gave corroborating testimony averring that Rushing and Martin identified themselves as mall security. (Rouse Dep. at 44).

  Defendants' version of the initial encounter between plaintiff Wahhab and defendants Rushing, Martin, and other security personnel begins with a call from Top Potato management to security, to which Rouse responded. (Rouse Dep. at 28). Rouse was apparently the first to address Wahhab, although from what can be gleaned from the record Rouse, Rushing, and Martin arrived on the scene nearly simultaneously. Defendants allege that Rouse approached Wahhab and asked him to step aside to speak with him. Id. at 39. Wahhab allegedly answered: "[F]uck you and fuck security." Id. Rouse maintains that he clarified to Wahhab that he was not intending to be disrespectful and assured Wahhab that he was in no "trouble" but that he must "sign a paper not to come back to the mall," which stated that if were to return, he would be treated as a trespasser. Id. Defendants maintain that Wahhab responded once again with obscenities. Id. Rouse then decided to call and wait for the undercover security and stepped back from Wahhab to allow them to handle the situation. Id. at 41.

  According to the depositions of Rushing and Martin, they each received a transmission over mall-issued radios requesting assistance in the food court from "red coats," or off-duty police officers. (Rushing Dep. at 112-13; Martin Dep. at 51-52). As Martin reached the food court, he observed that all the people in the food court were standing still, indicating to him that a serious incident had occurred. (Martin Dep. at 55). Rushing heard "yelling and screaming" coming from Wahhab and Top Potato manager Priftakis, who said, "Get that guy, get that guy, he just threw a bottle at me," pointing at Wahhab.*fn2 (Rushing Dep. at 117-19).

  Defendants allege that directly thereafter, Martin noticed other individuals, whether patrons or employees, gesturing towards Wahhab. (Martin Dep. at 56-59). Martin, who was the first undercover security guard to address Wahhab, approached Wahhab and inquired as to what the problem was. Wahhab allegedly replied "I have to go, I have to go." (Martin Dep. at 60-66). Page 4 Rushing avers that he then arrived, walked up to Wahhab and said, "Calm down, calm down, we don't know what happened. You're yelling, screaming and swearing. I need to know what's going on, calm down." (Rushing Dep. at 124). Wahhab answered "Get the fuck out of my face. I don't want to talk to you. Fuck you, fuck everybody. Get out of here."*fn3 (Rushing Dep. at 124).

  Rushing alleges that he told Wahhab he needed to "go in the back with [them]," referring to a security office separated from the public area. (Rushing Dep. at 126-27). According to defendants, when three or four more security guards then joined Rushing and Martin, including Rouse (who was in the immediate vicinity), at which time Wahhab voluntarily accompanied the group to the security office in the back of the mall. (Martin Dep. at 66-69).

  Plaintiffs, in contrast, allege that Wahhab was repeatedly pushed "hard" in the direction of the security office. (Wahhab Dep. at 30, 37). Just inside the security office door, Wahhab heard plaintiff Amehra Brown's voice and noticed that she was being blocked from entering the security office by one of the security guards. (Wahhab Dep. at 45, 53-54). Wahhab allegedly turned around and asked that she be allowed to enter, at which point Rushing allegedly punched Wahhab in the face and put him in a headlock. (Wahhab Dep. at 45). As Wahhab was attempting to pry Rushing's arms from around his neck, Rushing allegedly stated, "Now you're under arrest, asshole, you just assaulted a police officer."*fn4 (Wahhab Dep. at 46). Rushing and several officers then allegedly forced Wahhab to the ground, punching and kicking him in the process, immobilizing his arms behind him, and repeatedly stating, "You're going to jail." (Wahhab Dep. at 57).

  Defendants also claim that Wahhab was punched, but only once, and relate a different set of circumstances giving rise to the blow. Rouse alleges that he was struck by Wahhab "in the back of the neck, shoulder area" as the group was entering the security office. (Rouse Dep. at 48-49). It was then that Rushing and Martin allegedly grabbed Wahhab and, with Rouse's assistance, brought Wahhab to the ground. (Rouse Dep. at 52, 56). Rouse alleges that at that time Wahhab was again instructed that he was in no trouble, would not go to jail, and that all that was required of him was to sign a paper stating he would not come back to the mall. (Rouse Dep. at 58, 60). Wahhab was allegedly then seated on a two-seated couch in the security office, while Martin went to an adjacent room to find handcuffs. According to Rushing, Rushing turned his back to Wahhab, and despite the earlier assurances that Wahhab was "in no trouble," began to call 911 to request Wahhab's arrest. (Rushing Dep. at 135-137). Rouse, the only other person Page 5 then in the room with Rushing and Wahhab, was facing Rushing. (Rouse Dep. at 62-63). Rushing alleges that while Wahhab was seated on the couch, Wahhab became more and more irate, stating, "I don't care if you guys got guns. I have guns. I'll come back here. I will do this." (Rushing Dep. at 144). As Rushing was attempting to dial 911 and simultaneously turning back around to face Wahhab, Wahhab jumped from his seat and struck Rushing in the shoulder and neck, breaking the chain that held Rushing's badge. (Rushing Dep. at 147-48). Rushing instantly returned the blow, connecting with Wahhab's jaw. Id. Rushing alleges that he then left the room.*fn5 (Rushing Dep. at 151-53). Soon thereafter, uniformed police officers arrived and Rushing gave an account of the crime he witnessed. (Rushing Dep. at 154). Wahhab was arrested and taken to Kings County Hospital.

  Plaintiffs' account of this episode differs dramatically from defendants' version. Plaintiffs allege that while seated on the couch in the security office, and after being told to "shut up" and that he was "going to jail," Wahhab stated, "But you think that I should be intimidated by you because you have a badge and a gun? Just because you have a badge and a gun doesn't mean that people should live in fear. You're not the only person I know that has a gun." (Wahhab Dep. at 66-67). Enraged at this, Rushing retaliated, "Are you threatening me? Are you threatening me?" and proceeded to grab Wahhab, push his head into the couch so the left side of his face was exposed, and sit on top of him to prevent his moving. (Wahhab Dep. at 67-68). Wahhab alleges that he was then struck in the face and body repeatedly, and then bodily thrown, several times, into another room. (Wahhab Dep. at 70-73). Just after the beating, Wahhab, wavering in and out of consciousness, maintains he heard someone say, "Let's say he's not a cop. Let's say he's a security officer." (Wahhab Dep. at 78).

  Wahhab alleges that he spent five days in the hospital, where surgery was performed to re-attach his left jaw back to the side of his face and to pin his jaw together in the middle where it had been broken in two. (Wahhab Dep. at 84-85). He alleges that he has had three surgical procedures since then, one to remove the wiring and pins from his jaw, another to re-open the wound because of an infection, and another to have a root canal because of damage to his teeth. (Wahhab Dep. at 86, 90). Other conditions Wahhab attributes to the incident in question are sharp pains in his left shoulder, numbness in his chin and lip, biting his lip when he speaks, loss of sensation in the left side of his neck, loose teeth, two broken teeth, and diminished eyesight. (Wahhab Dep. at 94-95).

  Plaintiffs assert twelve claims in total, including deprivations of civil rights for unreasonable search and seizure and excessive force, assault and battery, intentional, reckless and negligent infliction of mental and emotional pain, false arrest, kidnapping, negligent hiring, screening, retention, supervision and training, willful, reckless, and negligent misrepresentation, Page 6 and respondeat superior liability.

  Three motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 are now before the court, one from defendant City of New York, one from defendants Gallery, Rushing and Martin, and one from defendants Cannady Security, Cannady, and Rouse. For the reasons set forth below, this court grants in part and denies in part defendant City of New York's summary judgment motion, grants in part and denies in part defendants Gallery, Rushing and Martin's summary judgment motion, and grants in part and denies in part defendants Cannady Security, Cannady and Rouse's summary judgment motion.


  A. Standard of Review on Summary Judgment

  According to Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleadings]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

  Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).

  B. City of New York Page 7

  1. Policy or Custom under the Monell Doctrine

  Defendant City of New York moves this court to grant summary judgment in its favor, arguing that plaintiffs have not proffered evidence showing that a custom or policy of the City caused the alleged deprivation of plaintiffs' civil rights.

  It is well settled that in a 42 U.S.C. § 1983 suit a municipality may not be held liable on a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (U.S. 1978). However, a municipality may be liable for damages under section 1983 "when execution of [its] policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. . . ." Monell, 436 U.S. at 694. The plaintiff alleging constitutional harm attributable to a municipality under § 1983 "must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404 (U.S. 1997) (italics in original).

  There are four situations in which a municipality can be held liable under 42 U.S.C. § 1983: (1) an officially promulgated policy endorsed or ordered by the municipality, Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); (2) a custom or practice that is so pervasive and widespread that the municipality had either actual or constructive knowledge of it, City of St. Louis v. Praprotnik, 485 U.S. 112, 130, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988); Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985); (3) actions taken or decisions made by the municipal employee who, as a matter of state law, is responsible for establishing municipal policies with respect to the area in which the action is taken, McMillian v. Monroe County, 520 U.S. 781, 117 S. Ct. 1734, 1736, 138 L. Ed. 2d 1 (1997); Praprotnik, 485 U.S. at 129-30, 108 S. Ct. 915; Pembaur, 475 U.S. at 480-83, 106 S. Ct. 1292; or (4) where the failure of the municipality to train its employees rises to the level of deliberate indifference to the constitutional rights of others, City of Canton ...

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