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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


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 ...

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