United States District Court, S.D. New York
September 6, 2005.
DEBORAH SYLVESTER, et al., Plaintiffs,
THE CITY OF NEW YORK, et al., Defendants.
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION & ORDER
This action arises out of the fatal shooting of Melvin
Sylvester by defendant Detective Terrence Donnelly. The
deceased's wife, Deborah Sylvester, on behalf of herself and the
estate of Melvin Sylvester, together with two of Melvin
Sylvester's children, William and Kimberly Sylvester, brought
this action against the City of New York (the "City") and seven
police officers and officials, asserting claims of assault and
battery, intentional infliction of emotional distress, negligent
infliction of emotional distress, and false imprisonment, among
others. The defendants have now moved for partial summary
The standard for granting summary judgment is well established.
Summary judgment may not be granted unless "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 a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs.
Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial
court's task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
genuine issues of material fact to be tried, not to deciding
them. Its duty, in short, is confined at this point to
issue-finding; it does not extend to issue-resolution." Gallo,
22 F.3d at 1224. The moving party bears the initial burden of
informing the district court of the basis for its motion and
identifying the matter that it believes demonstrates the absence
of a genuine issue of material fact. Celotex, 477 U.S. at 323.
The substantive law governing the case will identify those facts
that are material, and "only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Consol. Edison, Inc. v. Northeast Utilities,
332 F. Supp. 2d 639, 642 (S.D.N.Y. 2004). Summary judgment is appropriate if it appears that the
non-moving party cannot prove an element that is essential to the
non-moving party's case and on which it will bear the burden of
proof at trial. See Cleveland v. Policy Mgt. Sys. Corp.,
526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v.
Nat. Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In
determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Gallo,
22 F.3d at 1223. Summary judgment is improper if there is any
evidence in the record from any source from which a reasonable
inference could be drawn in favor of the nonmoving party. See
Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.
1994). If the moving party meets its initial burden of showing a
lack of a material issue of fact, the burden shifts to the
nonmoving party to come forward with "specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The
nonmoving party must produce evidence in the record and "may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible." Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas,
143 F.3d 105, 114-15 (2d Cir. 1998); Singh v. New York City Off-Track
Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at *1
(S.D.N.Y. June 8, 2005) (slip opinion); Consol. Edison,
332 F. Supp. 2d at 643.
Unless otherwise noted, the following facts are not disputed.
On August 8, 2003, after midnight, defendant Detective Terrence
Donnelly, a New York City Police Department ("NYPD") detective
dressed in plain clothes, approached a crowd that had gathered
outside the entrance of 200 West 131st Street in Manhattan.
(Defs.' Local Rule 56.1 Stmt. ("Defs.' Stmt."), ¶ 7; Pls.' Resp.
to Defs.' Local Rule 56.1 Stmt. ("Pls.' Stmt."), ¶¶ 7, 48;
Deposition of Detective Terrence Donnelly, dated July 22, 2004
("Donnelly Dep."), at 45, attached as Ex. F to Rossan Decl.) At
the time, Donnelly was not wearing corrective lenses prescribed
to him to correct astigmatism in one eye. (Donnelly Dep. at
11-12, 45.) Donnelly testifies that he heard people say "They are
fighting, they have guns across the street." (Id. at 69-70.)
After reaching the crowd, Donnelly allegedly raised his gun and
pointed it at William Sylvester, who placed his hands in the air
over his head. (Id. at 129-30.) Donnelly testified that he feared William Sylvester was going to shoot a woman
(id. at 127), but the plaintiffs counter that Donnelly never
observed a weapon in William's hands or on his person (Pls.'
Stmt. at 53; Donnelly Dep. at 136, 266). A few moments later,
Melvin Sylvester, William's father, approached the area where
Donnelly and William were. (Police Report, attached as Ex. 6 to
Aff. of Edward Sivin, dated Feb. 22, 2005 ("Sivin Aff.").)
The parties differ with respect to the circumstances of
Donnelly's shooting of Melvin Sylvester. The plaintiffs allege
that Donnelly shot Melvin even though Melvin did not advance
toward Donnelly and Donnelly did not observe an open knife in
Melvin's hands. (Pls.' Stmt. at 56-57; Donnelly Dep. at 157;
Deposition of Kimberly Sylvester, dated Sept. 20, 2004 ("Kimberly
Dep."), at 122, 129-30, attached as Ex. 2 to Sivin Aff.) They
also allege that after the shooting, Donnelly never observed an
open knife either on Melvin's person or near his body (Pls.'
Stmt. at 58; but see Donnelly Dep. at 169-73).
The defendants allege that while Donnelly was pointing his gun
at William, Melvin came at Donnelly from behind wielding a knife.
(See, e.g., Donnelly Dep. at 136.) Hearing a noise behind him,
Donnelly spun around, shouted warnings that he was a police
officer and that Melvin should stop, observed a knife in Melvin's hand, and then shot Melvin in
the chest after Melvin failed to stop. (Id. at 146-74.) The
defendants also deny plaintiffs' allegations that Donnelly ever
pointed his gun at Kimberly. (Kimberly Dep. at 293.)
Although no weapon was found on William, he was handcuffed and
taken by defendants officers James Quilty and Matthew Campbell to
the 32nd police precinct. (Donnelly Dep. at 266-67; Deposition of
James Quilty, dated Aug. 9, 2004 ("Quilty Dep."), at 78-85,
attached as Ex. N to Rossan Decl.; Deposition of Matthew
Campbell, dated Aug. 10, 2004 ("Campbell Dep."), at 70-73.)
William's sister Kimberly was taken to the 32nd police precinct
by defendant Thaddeus Hall. (Deposition of Thaddeus Hall, dated
Aug. 11, 2004 ("Hall Dep."), at 23, attached as Ex. M to Rossan
Decl.) Deborah Sylvester, Melvin's wife was also taken to the
32nd police precinct, although she had buckled at the scene after
learning that her husband had been shot. (Deposition of Deborah
Sylvester, dated Sept. 14, 2004 ("Deborah Dep."), at 156-61,
attached as Ex. 1 to Sivin Aff. and Ex. K to Rossan Decl.)
Neither of the three were ever charged with any crime, violation,
or other offense in connection with the shooting and other events
of August 8, 2003. (Id. at 177; Kimberly Dep. at 293, 299;
Deposition of William Sylvester, dated Sept. 15, 2004 ("William Dep."), at 216, attached as Ex. 3
to Sivin Aff.)
William was questioned by Detective Chavers at the 32nd police
precinct and Chavers wrote out a statement purporting to contain
William's observations of the shooting; this statement includes
the sentence: "My father had a little knife pocket knife in his
hand." (Deposition of Detective Byron Chavers, dated Aug. 21,
2004 ("Chavers Dep."), at 69, attached as Ex. L to Rossan Decl.;
Bates Nos. 379-81, attached as Ex. 6 to Sivin Aff.; but see
William Dep. at 118.) Kimberly was questioned at the 32nd police
precinct by Hall, who also wrote out a statement purporting to
contain her observations; that statement includes the following
sentence: "My father not knowing that they [were] cops pulled a
pocketknife and the cop shot him." (Bates No. 638, attached as
Ex. 6 to Sivin Aff.) In the recorded interview of Kimberly taken
on the night of the incident, Kimberly said, "[My father] kind of
came at him [Donnelly] to like stop him from shooting my brother,
but I think he came at him, maybe with a pocket knife." (Ex. E to
Rossan Decl. at 5.)
The parties disagree about the circumstances surrounding these
questionings and the resulting statements. The plaintiffs contend
that Kimberly's and William's statements were only given after officers told them that they could not go
to the hospital until they gave and agreed to the statements.
(Pls.' Stmt. at 12; Kimberly Dep. at 267, 276-81; William Dep.
170-71, 184, 207, 210-12.) The plaintiffs also allege that
Deborah was questioned at the 32nd police precinct by a
detective, allegedly Chavers, even though she requested
approximately six times that the questioning be stopped so that
she could go to the hospital to be with her husband. (Deborah
Dep. at 170; Chavers Dep. at 117; but see id. at 62-64.)
On the other hand, the defendants stress that Kimberly, in tape
recorded statements from the night of the shooting, said that
Melvin came at Donnelly with a pocket knife and that she was not
coerced into making statements. (Kimberly Dep. at 279-81, 284;
Ex. E to Rossan Decl. at 4-5, 8, 10.) The defendants also allege
that, although detective Byron Chavers attempted to interview
Deborah Sylvester, the interview was terminated upon her request
to go to the hospital. (Chavers Dep. at 62-64.) Moreover, the
defendants note that Deborah later said that she did not recall
speaking with Chavers. (Deborah Dep. at 171-72.)
Donnelly later told police officials that his police shield was
displayed around his neck when he shot Melvin, that Melvin
brandished a knife before he shot him, and that Melvin continued to charge at him after he yelled, "Stop,
police." (Bates No. 2, attached as Ex. 6 to Sivin Aff.) Moreover,
Quilty allegedly told police officials that, while Kimberly was
administering CPR to her dying father at the scene, she said:
"The cop was right, he was coming at him with a knife." (Bates
No. 199, attached as Ex. 6 to Sivin Aff.; Quilty Dep. at 58.)
The plaintiffs also argue that O'Looney, Deputy Commissioner
for Public Information for the New York City Police Department,
made inaccurate statements to the media when he said after the
shootings: "We've taken statement from three on-scene witnesses
who all say they see Melvin Sylvester coming at the officer from
behind with the knife raised in a stabbing motion." (Deposition
of Michael O'Looney, dated Oct. 18, 2004 ("O'Looney Dep."), at
43-45, 53, attached as Ex. H to Rossan Decl.; Bates Nos. 298,
300-01, 303-04, attached as Ex. 6 to Sivin Aff.) The plaintiffs
allege that a civilian witness questioned by the police told
investigators that Melvin was standing still and not holding
anything in his hands when he was shot (O'Looney Dep. at 67-68),
that only one non-family witness, Darlena Harding, allegedly said
that Melvin came at Donnelly from behind with a knife trying to
stab him (id. at 67; Bates Nos. 211-12, 690, attached as Ex. 6
to Sivin Aff.), and that, at the time, O'Looney had information that Harding might be biased (id. at
Bates Nos. 211-12, 674, 688, 690). The plaintiffs claim that
Brian Burke, assigned to the Public Information office, made the
following allegedly inaccurate statement: "It appeared the
officer acted within guidelines." (Deposition of Brian Burke,
dated Nov. 17, 2004 ("Burke Dep."), at 14, 19, 23-24, attached as
Ex. G to Rossan Decl.; Bates No. 299, attached as Ex. 6 to Sivin
Aff.) Burke's and O'Looney's statements were reported in multiple
New York area newspapers. (Id. at Bates Nos. 298-301, 303-04.)
Over the next few days, newspapers also quoted police sources
as stating that Melvin had ten prior arrests, including an arrest
in 2000 for menacing another with a knife. (Id. at Bates Nos.
298-99, 303-04.) The plaintiffs note that Melvin had not been
arrested since 1989, that all but two of his arrests resulted in
dismissals and sealed records, and that the police had knowledge
of this. (Id. at Bates Nos. 586, 679-84, 712-14, 721, 724;
O'Looney Dep. at 33-34, 73, 76.)
The defendants counter that O'Looney and Burke both listened to
Kimberly's recorded interview before making any statements to the
media and that their statements were consistent with hers. (Id.
at 90; Burke Dep. at 21-24.) Moreover, they argue that Burke only
responded to one media inquiry, which regarded whether the officers complied with
department guidelines, and that neither Burke nor O'Looney
disseminated any information to the media regarding Melvin's
criminal record or his alleged drinking prior to the shooting.
(Id. at 19-20, 26, 35; O'Looney Dep. at 90.)
In their Second Amended Complaint ("SAC"), filed on April 15,
2004, the plaintiffs allege twenty-nine causes of action against
the City of New York and seven named City of New York/NYPD
employees. In response to the motion for partial summary
judgment, the plaintiffs agreed to dismiss all or part of
numerous claims. The remaining claims are as follows: first, the
plaintiffs assert claims of assault and battery (First Cause of
Action) and violations of Melvin's rights pursuant to
42 U.S.C. § 1983 (Second Cause of Action).*fn1 Second, the plaintiffs assert claims on behalf of the Melvin's
estate against the City and Donnelly arising from Melvin's death
(Seventh and Eighth Causes of Action). Third, the plaintiffs
assert that Donnelly's actions prior to the shooting and the
shooting itself were acts of negligence (Fourth Cause of Action).
Fourth, the plaintiffs assert a civil liability claim for the
violation of New York Criminal Procedure Law § 160.50 (Sixth
Cause of Action). Fifth, the plaintiffs assert claims of
negligent infliction of emotional distress ("NIED") to William
and Kimberly based on "zone of danger" theories (Ninth and
Sixteenth Causes of Action). Sixth, the plaintiffs assert claims
of intentional infliction of emotional distress ("IIED") to
Kimberly, William, and Deborah for the actions of the defendants
subsequent to the shooting (Fifteenth, Twenty-Second,
Twenty-Seventh Causes of Action). Seventh, the plaintiffs assert
claims of false imprisonment and violations of 42 U.S.C. § 1983
(Eleventh, Twelfth, Eighteen, Nineteenth, Twenty-Third, and Twenty-Fourth
Causes of Action).*fn2 Finally, the plaintiffs assert a
claim for the alleged cover up by the defendants of the shooting
(Twenty-Eighth Cause of Action).
The plaintiffs also filed a motion to amend their SAC to add
Lieutenant Raymond Sanchez as a defendant. (See Docket Nos.
20-21.) The plaintiffs later agreed not to pursue their proposed
causes of action alleging that Sanchez participated in a
racially-motivated conspiracy to cover up the facts of the
shooting, and Magistrate Judge Mass denied the remainder of the
plaintiffs' motion to amend their SAC. (Docket No. 44.) The
plaintiffs filed no objections to that ruling.
The defendants move for summary judgment on the plaintiffs'
negligence claim against Donnelly and the City (Fourth Cause of
Action). As an alternative cause of action to assault and battery
(First Cause of Action), the plaintiffs claim that Donnelly,
through a combination of inexperience, panic, mistake, and poor
eyesight, inadvertently fired his gun at Melvin. The defendants contend that, under New York law, "once
intentional offensive contact has been established, the actor is
liable for assault and not negligence, even when the physical
injuries may have been inflicted inadvertently." Mazzaferro v.
Albany Motel Enter., Inc., 515 N.Y.S.2d 631, 632-33 (App. Div.
1987) (internal citation omitted); Masters v. Becker,
254 N.Y.S.2d 633, 634-35 (App. Div. 1964). Federal cases have
followed Mazzaferro. See, e.g., Busch v. City of New York,
No. 00 CV 5211, 2003 WL 22171896, at *7 (E.D.N.Y. Sept. 11,
2003); Dineen v. Stramka, 228 F. Supp. 2d 447, 454 (S.D.N.Y.
2002) (holding that "[w]hen a plaintiff asserts excessive force
and assault claims which are premised upon a defendant's
allegedly intentional conduct, a negligence claim with respect to
the same conduct will not lie" (citing Mazurkiewicz v. New York
City Tarnsit Auth., 810 F. Supp. 563, 570-71 (S.D.N.Y. 1993))).
The defendants also argue, in this case, that there is no
evidence of negligent conduct and that there is no dispute that
Donnelly intended to shoot Melvin Sylvester and that he hit his
intended target. Indeed, all of the defendants conceded at the
argument of this motion that the shooting was intentional.
The plaintiffs argue that, under Federal Rule of Civil
Procedure 8(e)(2), they can "`plead two or more statements of a
claim, even within the same count, regardless of consistency.'" Adler v. Pataki, 185 F.3d 35, 41 (2d Cir. 1999)
(internal citation omitted). They also identify some cases where
shootings by police officers proceeded under common-law
negligence theories. See, e.g., McCummings v. New York City
Transit Auth., 613 N.E.2d 559 (N.Y. 1993) (affirming a verdict
in favor of the plaintiff based on a theory of negligence against
a police officer who shot the plaintiff); Blaize v. City of New
York, 436 N.Y.S.2d 34, 35 (App. Div. 1981). Accordingly, they
argue that a reasonable jury could find that Donnelly was
negligent and that they can plead both intentional assault and
Mazzaferro questioned the continuing validity of an earlier
New York Court of Appeals decision, Flamer v. City of Yonkers,
127 N.E.2d 838 (N.Y. 1955), which held that a negligence claim
could be asserted against a police officer even in the presence
of an assault claim. Mazzaferro pointed to more recent cases
and the Restatement (Second) of Torts and noted that Flamer
should be limited to conduct in the course of law enforcement
activities by the police. Mazzaferro, 515 N.Y.S.2d at 633.
While it is possible to have a negligent shooting claim against
a police officer, see McCummings, 613 N.E.2d at 561, the
summary judgment record in the case establishes that the shooting
was intentional and not negligent. In view of that intentional conduct, no reasonable juror could find that the
conduct was negligent, and therefore, a claim for a negligent
shooting cannot be sustained in this case. See Busch, 2003 WL
22171896 at *7; Dineen, 228 F. Supp. 2d at 454. While the
plaintiffs attempt to assert that Donnelly may have carelessly or
negligently shot Melvin, there is no evidence for that theory and
Donnelly admits having intentionally shot Melvin.
The plaintiffs also argue that Donnelly created an
"unreasonable risk" that caused the shooting. The plaintiffs rely
on Greggo v. City of Albany, 395 N.Y.S.2d 735, 737-38 (App.
Div. 1977). But in Greggo, the police officer created the
unreasonable risk by acting unreasonably towards a third party
who obtained a weapon from the police officer and shot the
plaintiff. Greggo was not a case such as here where the
evidence shows without reasonable dispute that the police officer
intentionally shot the plaintiff.
Accordingly, the defendants' motion for summary judgment
dismissing the Fourth Cause of Action is granted.
The defendants move for summary judgment dismissing the
plaintiffs' claim that Melvin's reputation was injured as a
result of the defendants' alleged violation of New York Criminal Procedure Law ("CPL") § 160.50 (Sixth Cause of Action).
CPL § 160.50 provides that, upon termination of a criminal
proceeding in favor of the accused and if the interests of
justice do not require otherwise "the record of such action or
proceeding shall be sealed." N.Y. CPL Law § 160.50. In their
complaint, the plaintiffs argue that CPL § 160.50 was violated
when Melvin's criminal record was allegedly disclosed to the
press, and Melvin's reputation was injured. The defendants
counter that (1) a claim of injury to reputation does not survive
death, (2) the plaintiffs do not provide evidence and cannot
establish that any defendant disseminated information about
Melvin's criminal record, and (3) a violation of CPL § 160.50
does not give rise to civil liability.
CPL § 160.50 does not explicitly provide for a cause of action
for damages if it is violated and no case has provided for
damages solely on the basis of an alleged violation of CPL §
160.50. Moreover, because, in other contexts, claims for harm to
one's reputation do not survive death, even if there existed a
civil cause of action under CPL § 160.50, it would not have
survived Melvin's death. See, e.g., Meerpool v. Nizer,
381 F. Supp. 29, 35 n. 3 (S.D.N.Y. 1974) (noting that in New York, even
a descendant cannot bring an action for defamation of a deceased individual (citing Rose v. Daily Mirror, Inc., 31 N.E.2d 182
Although the plaintiffs never pleaded this cause of action
under 42 U.S.C. § 1983 in their complaint, they cite in their
memorandum Anderson v. City of New York, where the court held
that the plaintiff stated a cause of action under
42 U.S.C. § 1983 for the violation of a constitutionally protected liberty
interest under CPL § 160.50. Anderson v. City of New York,
611 F. Supp. 481, 488-90, 494 (S.D.N.Y. 1985). In any event, even
under § 1983, the plaintiffs' claim must be dismissed.
While Anderson did permit a § 1983 cause of action arising
out of an alleged violation of CPL § 160.50, there is no basis to
apply that decision here. First, there is reason to question the
continuing vitality of Anderson. See Griffin v. Kelly, No.
92 Civ. 8623, 1994 WL 9670, at *4-5 (S.D.N.Y. Jan. 11, 1994)
(assuming arguendo the continued vitality of Anderson but
finding no constitutional violations in that case); Moore v.
Dormin, 662 N.Y.S.2d 239, 243-44 (Sup. Ct. 1997) (finding no
constitutional violation of CPL § 160.50). Judge Scheindlin has
persuasively argued that the analysis in Andersen that found a
constitutionally protected liberty interest in CPL § 160.50 has
been undermined. As Judge Scheindlin explained: In reaching its decision, Anderson relied, in part,
on Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864,
74 L.Ed.2d 675 (1983), which held that a state statute
can create a constitutionally protected liberty
interest if it contains `language of an unmistakably
mandatory character' such that the intrusion on one's
liberty would not occur `absent specified substantive
predicates.' Id. at 471-72, 103 S.Ct. at 871. Based
on this standard, the Anderson court reasoned that
a liberty interest was created by the mandatory
language of CPL § 160.50. In Sandin v. Conner,
515 U.S. 472, ___, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418
(1995), however, the Supreme Court abandoned the
approach used in Hewitt, finding that it `strayed
from the real concerns undergirding the liberty
protected by the Due Process Clause.'
Grandal v. City of New York, 966 F.Supp. 197, 202 (S.D.N.Y.
In any event, the interests that the Andersen court found to
be protected by CPL § 160.50 do not exist here. In Andersen,
the court noted that the various interest protected by the
statute included an accused's right "in the pursuit of
employment, education, professional licensing and insurance
opportunities." Andersen, 611 F. Supp. at 488 (internal
citation omitted). Other courts have found no violation of any
liberty interest protected by CPL § 160.50 in the absence of
specific allegations of harm to reputation coupled with specific
harms to the accused's employment, education, professional
licensing and insurance opportunities. See, e.g., Compton v.
Middaugh, No. 95 Civ. 552, 1998 WL 59451, at *4-5 (N.D.N.Y. Feb.
9, 1998); Grandal, 966 F. Supp. at 202 and n. 7; Griffin, 1994 WL 9670 at *4. In this case, there can
be no such allegation. Melvin no longer has a protectable
interest in his reputation under New York State law that survived
his death. Moreover, there are no allegations of any harm to
other opportunities for Melvin that could be made in view of his
Therefore, the plaintiffs' Sixth Cause of Action is dismissed.
The defendants move for summary judgment dismissing the
plaintiffs' claims for intentional infliction of emotional
distress ("IIED"). These claims are asserted by Kimberly
(Fifteenth Cause of Action) and by William (Twenty-Second Cause
of Action) against the City, Donnelly, Burke, O'Looney, Quilty,
Campbell, Chavers, and Hall.*fn3 The plaintiffs argue that
Campbell, Quilty, Chavers, and Hall prevented Kimberly and
William from seeing Melvin after the shooting; that Chavers and
Hall engaged in a course of conduct that was designed to elicit
false statements from William and Kimberly; and that Donnelly,
O'Looney, and Burke disseminated false information about Melvin.
The defendants move for summary judgment dismissing their claims against various
defendants on various bases discussed below.
In New York, "public policy prohibits recovery for claims of
intentional infliction of emotional distress against the
City. . . ." Hazan v. City of New York, No. 98 Civ. 1716,
1999 WL 493352, at *7 (S.D.N.Y. July 12, 1999) (citing Lauer v.
City of New York, 659 N.Y.S.2d 57, 58 (App. Div. 1997), app.
denied, 91 N.Y.2d 807 (N.Y. 1998); Wheeler v. New York,
479 N.Y.S.2d 244 (App. Div. 1984)). The plaintiffs failed to
respond to the defendants' argument based on this principle of
New York law. Accordingly, the defendants' motion for summary
judgment dismissing the plaintiffs' IIED causes of action against
the City is granted.
To maintain a claim of IIED under New York law, the plaintiffs
must establish "(1) extreme and outrageous conduct, (2) intent to
cause severe emotional distress, (3) a causal connection between
the conduct and the injury, and (4) severe emotional distress."
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996)
(citing Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993)). In Howell, the New
York Court of Appeals noted that "the requirements of the rule
are rigorous, and difficult to satisfy"; that "of the intentional
infliction of emotional distress claims considered by [the New
York Court of Appeals], every one has failed because the alleged
conduct was not sufficiently outrageous"; and that "[l]iability
has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Howell, 81 N.Y.2d at 122
(internal citation and quotation marks omitted). However, in
Bender, the Court of Appeals for the Second Circuit noted that
"lower [New York] courts have sustained some emotional distress
claims . . . that appear to allege conduct that is somewhat less
than utterly intolerable in a civilized society." Bender,
78 F.3d at 791 (citing Flatley v. Hartmann, 525 N.Y.S.2d 637, 638
(App. Div. 1988); Halio v. Lurie, 222 N.Y.S.2d 759, 764 (App.
Div. 1961); Flamm v. Van Nierop, 291 N.Y.S.2d 189, 191 (Sup.
Ct. 1968)) (internal citation and quotation marks omitted); but
see Silberstein v. Advance Magazine Publishers, Inc.,
988 F. Supp. 391, 394 (S.D.N.Y. 1997) (noting that Bender and the
cases it cites "antedate the New York Court of Appeals' recent
and pointed reminder that it never has sustained a claim for intentional
infliction of emotional distress").
The plaintiffs allege that statements by Donnelly, Burke,
Quilty, and O'Looney are "outrageous" and "extreme" and
sufficient to maintain a claim of IIED. Howell,
612 N.E.2d at 702. Some courts have allowed IIED causes of action to proceed
for the making of false reports the alleged conduct of Donnelly
and for plotting to make, and making of, false statements about
the conduct of a plaintiff. See, e.g., Kurschus v.
Painewebber, Inc., 16 F. Supp. 2d 386, 391, 395 (S.D.N.Y. 1998)
(holding that the plaintiff's claim that the defendants plotted
to accuse falsely the plaintiff of coercing sex from one of the
defendants satisfied the first element of IIED). In other cases,
however, mere false and outrageous statements were not enough to
establish a claim of IIED. See, e.g., Harville v. Lowville
Cent. Sch. Dist., 667 N.Y.S.2d 175, 176-77 (App. Div. 1997)
(holding that the plaintiffs failed to state a cause of action
for IIED where a teacher told the plaintiffs' child, Rebecca,
"Boy you Polish Nazis are smart," and then added, "Becky's going
to be mad at me for a week"). In this case, accepting the plaintiffs' allegations, the
officers lied about the number of witnesses who said they saw
Melvin coming at Donnelly from behind with a knife, about the
fact that Donnelly had shouted to Melvin to stop because Donnelly
was a police officer, and about the officers acting within
guidelines.*fn4 However, none of these alleged statements
were about the plaintiffs claiming IIED Kimberly and William.
Allegedly lying about the circumstances surrounding the
plaintiffs' father does not rise to the level of the conduct in
Kurschus where false statements about the plaintiff were
allegedly made as part of a plot to accuse the plaintiff of a
serious crime. Kurschus, 16 F. Supp. 2d at 395. Indeed, the
plaintiffs fail to identify any case where false statements like
the ones in this case directed at the plaintiffs' family
member, but not the plaintiffs are on their own sufficient to
maintain a claim of IIED. Lacking statements directed at the
plaintiffs, the facts in the record are unlike those of IIED
cases based on false statements by the police. Accordingly, the alleged false statements of Donnelly,
O'Looney, Quilty, and Burke do not alone give rise to a claim of
IIED by the plaintiffs Kimberly and William.
The plaintiffs also allege that false statements by Quilty; the
forcible bringing of William and Kimberly to the precinct by
Quilty, Campbell, and Hall; the ignoring of William's and
Kimberly's requests to go to the hospital by Quilty, Campbell,
Hall, and Chavers; and the elicitation of false statements from
William and Kimberly by Hall and Chavers are, when taken
together, "outrageous" and "extreme" and sufficient to maintain a
claim of IIED.*fn5 Murphy v. American Home Products Corp.,
448 N.E.2d 86, 90 (N.Y. 1983). In Bender, allegations that the
plaintiff was falsely accused of wrongfully initiating an assault
against an officer and was falsely accused of assault were
sufficient to sustain a claim of IIED. Bender, 78 F.3d at 789,
791-92. Although, unlike Bender, the plaintiffs William and Kimberly were never
charged with, or falsely accused of, criminal acts, the alleged
conduct of some of the defendants against those two plaintiffs
could be found by a reasonable jury to rise to the level of a
claim of IIED. Indeed, a reasonable jury could find it "utterly
intolerable in a civilized community" for police officers to
detain innocent individuals, pressure them to give false
statements, and ignore their requests to leave police custody,
all while a family member is dying in a nearby hospital.
Bender, 78 F.3d at 791 (citations omitted). There is
conflicting testimony as to the circumstances surrounding the
above-described allegations and issues of fact as to whether
William and Kimberly were forcibly brought to the 32nd police
precinct, whether officers ignored their requests to leave, and
whether officers elicited false statements. These questions, if
resolved in the plaintiffs' favor, could be found to be
"outrageous" and "extreme" by the fact finder.
Accordingly, the conduct of officers Chavers and Hall, who are
alleged to have participated in the forcible detention,
elicitation of statements, and ignoring of requests to leave,
could be found to rise to such a level. On the other hand, the
actions of officers Quilty and Campbell, because they were not involved in the alleged
elicitation of false statements, do not rise to such a
The defendants counter that, because the conduct complained of
by the plaintiffs is encompassed in the plaintiffs' claims of
false imprisonment, the IIED cause of action is redundant. The
New York Court of Appeals has stated that "[i]t may be questioned
whether the doctrine of liability for intentional infliction of
extreme emotional distress should be applicable where the conduct
complained of falls well within the ambit of other traditional
tort liability. . . ." Fischer v. Maloney, 373 N.E.2d 1215,
1217 (N.Y. 1978). This rule has been applied to bar claims of
IIED in both New York State and federal courts. See, e.g.,
Druschke v. Banana Republic, 359 F. Supp. 2d 308, 315-16
(S.D.N.Y 2005); Herlihy v. Metro. Museum of Art,
633 N.Y.S.2d 106, 114 (App. Div. 1995). However, some courts have sustained
IIED claims even where the conduct complained of fell under other
traditional tort doctrines. See, e.g., Levine v. Gurney,
539 N.Y.S.2d 967, 968 (App. Div. 1989); Murphy v. Murphy,
486 N.Y.S.2d 457, 459 (App. Div. 1985); but see Bender, 78 F.3d at 792 (noting that the Court of Appeals
for the Second Circuit is "uncertain whether the [New York]
courts would entertain an emotional distress claim in addition to
other torts" and that the unusual facts in Levine, where the
police officer was involved with the victim's husband, make "that
case a doubtful authority for inferring any generalized rule").
In this case, although there undoubtfully is overlap between
William's and Kimberly's IIED claims and their false imprisonment
claims, the IIED claims are not duplicative because enough
elements of the IIED claims do not fall under any of the
plaintiffs' other tort causes of action. Indeed, the elicitation
of allegedly false statements by Hall and Chavers and the fact
that this happened after Melvin had been shot and while he was
dying in a hospital are elements not covered by the tort of false
imprisonment; while some of Hall's and Chaver's alleged conduct
"falls within the ambit of traditional tort liability," some of
their alleged conduct exceeds the ambit of traditional false
imprisonment and falls solely within the ambit of IIED. See
also Wahhab v. City of New York, No. 02 Civ. 0851, 2005 WL
323716, at *14 (S.D.N.Y. Feb. 10, 2005) (denying the defendants'
motion for summary judgment on the plaintiffs' IIED cause of action because the claim was not wholly
duplicative of claims for assault and battery).
The defendants also argue that their motion for summary
judgment should be granted because the plaintiffs have failed to
produce any medical evidence of their emotional injury. Although
in some cases, lack of medical evidence was held to be a
sufficient ground for granting a motion for summary judgment,
courts have also held that medical evidence is not a prerequisite
to IIED claims. Compare Singh v. U.S. Security Associates,
Inc., No. 03 Civ. 2059, 2005 WL 236511, at *14 (S.D.N.Y. Feb. 1,
2005) (medical evidence was necessary), and Walentas v.
Johnes, 683 N.Y.S.2d 56, 58 (App. Div. 1999) (same), with
Fusco v. Cohen, No. 92 Civ. 1525, 1997 WL 473061, at *1
(N.D.N.Y. Aug. 7, 1997) (no medical evidence necessary where
plaintiff provides evidence of emotional distress), and
Massaro v. O'Shea Funeral Home, Inc., 738 N.Y.S.2d 384, 386
(App. Div. 2002) (no medical evidence necessary where special
circumstances guarantee claim is not spurious). In some cases,
the allegations are such that severe emotional distress requires
no medical evidence. See, e.g., Massaro, 738 N.Y.S.2d at 386.
In this case, William and Kimberly, after witnessing the shooting
of their father, were allegedly falsely detained, prevented from
seeing their dying father, and forced to make false statements.
These allegations give rise to a sufficient likelihood that the
plaintiffs suffered severe emotional distress and "`serve? as a
guarantee that the claim is not spurious.'" Massaro,
738 N.Y.S.2d at 386 (internal citation and quotation omitted).
Moreover, in their sur-reply, the plaintiffs provided medical
records evidencing the plaintiffs' emotional state after the
shootings. These records are sufficient for a reasonable jury to
find that the third and fourth elements of IIED are satisfied.
(See Bates Nos. Dudley 001-23, attached to Pls' Sur-Reply Mem.
of Law in Partial Opposition to Defs.' Mot. for Summ. Judgment,
dated Mar. 17, 2005). Accordingly, the defendants' motion for
summary judgment cannot be granted on the grounds that the
plaintiffs failed to provide medical evidence.
As explained above, the defendants' motion for summary judgment
dismissing the IIED claims of William and Kimberly against Hall
and Chavers is denied. On the other hand, the defendants' motion
for summary judgment on William and Kimberly's IIED claims
against Campbell and Quilty and the defendants' motion for
summary judgment on Deborah's IIED claims are granted. Moreover,
the defendants' motion for summary judgment dismissing the plaintiffs' IIED claims against
Donnelly, O'Looney, Burke, and the City is granted.
The defendants move for summary judgment on Kimberly's and
William's claims for negligent infliction of emotional distress
("NIED") against the City and Donnelly (Ninth and Sixteenth
Causes of Action, respectively). The defendants argue that, under
New York law, Kimberly cannot establish that she was threatened
with physical harm because Donnelly never pointed his gun at her.
They also argue that William did not make a claim based on his
fear to his safety and that neither plaintiffs can prevail on an
NIED theory because Donnelly's actions were intentional. The
plaintiffs counter that there is evidence that Donnelly pointed
his gun at Kimberly and that she was frightened during the
shooting. Moreover, they assert that William is making a claim
for his fear based on Donnelly's pointing a gun at him.
Under New York law, the "zone of danger" rule provides that:
where a defendant negligently exposes a plaintiff to
an unreasonable risk of bodily injury or death, the
plaintiff may recover, as a proper element of his or
her damages, damages for injuries suffered in
consequence of the observation of the serious injury
or death of a member of his or her immediate family
assuming, of course, that it is established that the
defendant's conduct was a substantial factor bringing about such
injury or death.
Bovsun v. Sanperi, 461 N.E.2d 843, 848 (N.Y. 1984); see
also Mortise v. United States, 102 F.3d 693, 696 (2d Cir.
1996) (relying on Bovsun). The zone of danger theory has been
applied in cases involving shootings by police officers. For
example in Lubecki v. City of New York, the court upheld an
award for NIED by the decedent's brother because he was in the
"zone of danger" and witnessed police officers shooting his
sister. Lubecki v. City of New York, 758 N.Y.S.2d 610
618, 620 (App. Div. 2003).
In this case, the evidence indicates that both Kimberly and
William observed the shooting of their father, and it is
undisputed that Donnelly pointed his gun at William. There are
questions of fact as to whether Donnelly pointed his gun in the
direction of Kimberly. Although the defendants rely on Kimberly's
post-shooting concession that Donnelly never did point his gun at
her, part of her claim is that those were false statements
elicited from her by the defendants, and there are issues of fact
whether this statement was accurate. Accordingly, summary
judgment cannot be granted on these claims.
The defendants also argue that, because Donnelly intentionally
shot Melvin, no NIED claim can result from the shooting. This argument confuses the nature of the
shooting;*fn7 although a jury could find that Donnelly
intentionally shot Melvin, this does not preclude actions by
bystanders based on negligence toward them. See Maney,
477 N.Y.S.2d at 438 (noting that a cause of action may lie for
unintended harm resulting from injuries inflicted intentionally
upon another (citing Bovsun, 61 N.Y.2d at 230-31)).
Accordingly, the defendants' motion for summary judgment
dismissing William's and Kimberly's NIED causes of action is
The defendants move for summary judgment on the plaintiffs'
Twenty-Eighth Cause of Action. In the SAC, the Twenty-Eighth
Cause of Action appears to state only a Monell claim. Monell
v. Dep't of Soc. Servs., 436 U.S. 658 (1978). However, although
the plaintiffs, in their memorandum of law, dropped all of their
Monell claims, they also argued that in their Twenty-Eighth
Cause of Action they stated a conspiracy claim under
42 U.S.C. § 1983. The defendants responded that the plaintiffs have failed to offer any evidence of such a
The SAC does not state a conspiracy claim under § 1983; it only
states a Monell claim which the plaintiffs have now disavowed.
Indeed, in the Twenty-Eighth Cause of Action in the SAC, the
plaintiffs allege that "pursuant to an official municipal policy
or custom of the City," all of the defendants were involved in a
cover up, inaccurate portrayal of Melvin and of the shooting, and
that these actions were meant to exculpate the defendants from
criminal and civil liability. (SAC ¶ 151.) Accordingly, the
Twenty-Eighth Cause of Action in the SAC describes only a
Monell claim based on the policy and did not state a separate
cover-up claim under § 1983. In any event, even a conspiracy
claim under § 1983 must be dismissed.
A conspiracy claim under 42 U.S.C. § 1983 requires the
plaintiff to show: (1) an agreement between two or more state
actors or between a state actor and a private entity; (2) to act
in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir.
2002); Kramer v. City of New York, No. 04 Civ. 106, 2004 WL
2429811, *7 (S.D.N.Y. Nov. 1, 2004). The Court of Appeals for the
Second Circuit has also stated that "complaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights are properly
dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct."
Ciambriello, 292 F.3d at 325. Moreover, although such claims
"are by their very nature secretive operations, and may have to
be proven by circumstantial, rather than direct, evidence . . .
[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss." Kramer, 2004 WL 2429811 at *7 (internal citation and
quotation marks omitted).
In this case, the plaintiffs have failed to present evidence
regarding the existence of an agreement to violate their
constitutional rights. Indeed, although the plaintiffs make a
number of allegations that the defendants lied, forcibly took
some of the plaintiffs to the 32nd precinct, and elicited false
statements from some of the plaintiffs, they fail to present any
evidence of an agreement.
More importantly, the plaintiffs fail to explain how the
injuries from the alleged cover-up are different from those
resulting from the alleged underlying constitutional violations
or how the alleged conspiracy resulted in a lost remedy. In Paige v. City of Schenectady, the Court of Appeals
for the Second Circuit found that "the alleged police conspiracy
had no significant effect upon [the plaintiff's] ability to bring
her cause of action. . . ." Paige v. City of Schenectady,
264 F.3d 197, 200 (2d Cir. 2001); see also Christopher v.
Harbury, 536 U.S. 403, 414 (2002) (noting that, for
backward-looking claims, plaintiffs are required to show that
they previously possessed a claim that cannot be litigated or
could have produced a remedy later unobtainable because of the
alleged cover-up); Small v. City of New York,
274 F. Supp. 2d 271, 278-79 (E.D.N.Y. 2003). In this case, however, the
plaintiffs fail to point to a lost claim or remedy resulting from
the alleged cover-up, and the injuries from the cover-up appear
no different than those stated in the plaintiffs' other claims.
Accordingly, the defendants' motion to dismiss the plaintiff's
Twenty-Eighth Cause of Action is granted.
The defendants move for summary judgment dismissing the
Twenty-Fourth Cause of Action, which, as amended, is asserted by
Deborah Sylvester against Chavers alleging that he falsely
imprisoned her and thereby violated her constitutional rights and
violated 42 U.S.C. § 1983. Defendants argue that Chavers never participated in the alleged false imprisonment of Deborah,
and that she conceded as much during her deposition. The
plaintiffs did not to respond to the defendants' arguments.
Although the plaintiffs assert that Chavers ignored at least
six of Deborah's requests to go to the hospital; the record and
Deborah's testimony at her deposition does not support that
assertion. First, during his deposition, Chavers testified that
he terminated his interview upon her request to go to the
hospital and that he did not interact with Deborah beyond his
brief interview. Second, there is no evidence in the record that
he was involved in the alleged process of bringing her to the
32nd precinct or of keeping her there. Third, Deborah testified
during her deposition that she had no recollection of being
interviewed by Chavers and that the detective who ignored her
requests to go to the hospital was Caucasian Chavers is
Accordingly, Deborah's own admissions are that an officer who
could not have been Chavers allegedly falsely imprisoned her.
Because the plaintiffs fail to respond to the defendants'
arguments and to offer any evidence from which a reasonable juror
could conclude that Chavers falsely imprisoned Deborah, the
defendants' motion for summary judgment dismissing the remaining claim of the plaintiffs'
Twenty-Fourth Cause of Action is granted.
The individual defendants conclusorily oppose all of the
plaintiffs' causes of action against them on the grounds of
qualified immunity. They claim that the plaintiffs failed to
demonstrate that the defendants' conduct was performed outside of
their discretionary function or in intentional violation of the
plaintiffs' established rights. The plaintiffs counter that
qualified immunity is an affirmative defense, and that the burden
is on the individual defendants to show that they are entitled to
qualified immunity on each of the remaining causes of action
against each of them. The defendants have not even attempted to
Under the federal doctrine of qualified immunity, government
officials may be protected from suits against them in their
individual capacity. As articulated in by the Second Circuit
Court of Appeals in McCullough:
A government agent enjoys qualified immunity when he
or she performs discretionary functions if either (1)
the conduct did not violate clearly established
rights of which a reasonable person would have known,
or (2) it was objectively reasonable to believe that
the conduct did not violate clearly established
rights. A right is clearly established if the
contours of the right are sufficiently clear that a
reasonable official would understand that what he or she is doing
violates that right. The question is not what a
lawyer would learn or intuit from researching case
law, but what a reasonable person in the defendant's
position should know about the constitutionality of
the conduct. The unlawfulness must be apparent.
McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272
278 (2d Cir. 1999); see also Young v. County of Fulton,
160 F.3d 899
, 903 (2d Cir. 1998).
Defendants have the burden of raising and establishing the
affirmative defense of qualified immunity, at trial or on a
motion for summary judgment. In re State Police Litig.,
88 F.3d 111, 123 (2d Cir. 1996) (citing Gomez v. Toledo, 446 U.S. 635,
640 (1980)). Moreover, on a motion for summary judgment, if there
are factual issues as to the reasonableness of the defendants'
actions, the defendants are not entitled to summary judgment on a
defense of qualified immunity. Curry v. City of Syracuse,
316 F.3d 324, 334-35 (2d Cir. 2003) (reversing a district court's
grant of summary judgment on the basis of qualified immunity
because there were issues of material fact regarding the
defendants' reasonable belief that their use of force was not
excessive); Kerman v. City of New York, 261 F.3d 229, 240 (2d
Cir. 2001) ("[s]ummary judgment on qualified immunity grounds is
not appropriate when there are facts in dispute that are material to a determination of reasonableness") (internal citation
In this case, the defendants fail to explain for which claims
they are raising a defense of qualified immunity. They also fail
to explain whether qualified immunity applies to claims for which
they do not seek summary judgment. Moreover, they fail to explain
why, for each claim, the actions of the defendants were such that
reasonable officials could disagree as to whether they violated
clearly established rights. Indeed, the defendants provide no
explanations whether based on the record or mere allegations
for the officers' conduct. Accordingly, the defendants fail to
carry their burden on the affirmative defense of qualified
immunity, and their conclusory motion for summary judgment on
this ground is denied. CONCLUSION
As conceded by the plaintiffs, the following causes of action
are hereby dismissed: (1) the Third, Fifth, Tenth, Thirteenth,
Fourteenth, Seventeenth, Twentieth, Twenty-First, Twenty-Fifth,
Twenty-Sixth, and Twenty-Ninth Causes of Action; (2) the parts of
the Eleventh and Twelfth Causes of Action against Quilty,
Campbell, and Chavers; (3) the parts of the Eighteenth and
Nineteenth Causes of Action against Hall; (4) the parts of the
Twenty-Fourth Cause of Action against Quilty, Campbell, Hall, and
the City of New York; (5) all Monell claims, including any
Monell claims in the Twenty-Eighth Cause of Action.
For the reasons explained above, the defendants' motion for
summary judgment is granted dismissing the following causes of
action: (1) the Fourth Cause of Action; (2) the Sixth Cause of
Action; (3) the parts of the Fifteenth and Twenty-Second Causes
of Action against Campbell, Quilty, Donnelly, O'Looney, Burke,
and the City; (4) the Twenty-Fourth Cause of Action; (5) the
Twenty-Seventh Cause of Action; (6) the remaining parts of
Twenty-Eighth Cause of Action.
The plaintiffs' following claims remain: (1) the First,
Second, Seventh, Eighth, and Twenty-Third Causes of Action, which
were not opposed by defendants; (2) the parts of the Eleventh Cause of Action against the City of New York and Hall
and the parts of the Twelfth Cause of Action against Hall; (3)
the parts of the Eighteenth Cause of Action against the City of
New York, Quilty, Campbell, and Chavers and the parts of the
Nineteenth Cause of Action against Quilty, Campbell, and Chavers;
(4) the parts of the Fifteenth and Twenty-Second Causes of Action
against Hall and Chavers; (5) the Ninth and Sixteenth Causes of
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