The opinion of the court was delivered by: JOHN KOELTL, District Judge
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
judgment.
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
negligence.
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 ...