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September 30, 2005


Plaintiffs Jason Rowley, Sheldon Gilbert, Lauren Sudeall and Marie Claire Lim ("Plaintiffs") bring this civil rights action for damages, pursuant to 42 U.S.C. § 1983, assault and battery, false arrest and false imprisonment, malicious prosecution, and negligent hiring, training, and retention of employment services.*fn1 The City of New York, the New York City Police Department, the New York Department of Corrections, and various named and unnamed police and corrections officers ("Defendants") move for partial summary judgment as to three of the claims: false arrest, malicious prosecution, and negligent hiring, training, and retention. For the reasons stated below, Defendants' motion for partial summary judgment as to these three claims is DENIED in part and GRANTED in part.

The opinion of the court was delivered by: Batts, J.



Shortly before midnight on January 10, 2000, Plaintiff Rowley was driving his two-door Toyota Camry in Manhattan, in the area of Union Square on 14th Street, with three of his coworkers. (Am. Compl. ¶¶ 2, 22; Pls.' 56.1 Stmt. ¶¶ 1, 2; Defs.' 56.1 Stmt. ¶¶ 1, 2.) Plaintiff Gilbert was in the front passenger seat and Plaintiffs Lim and Sudeall were in the back seat. (Am.Compl.¶ 2.) Rowley and Gilbert are black, Lim is Filipino, and Sudeall is bi-racial. (Id.) Rowley pulled his car over at Union Square to let out the two passengers sitting in the back seat. (Am. Compl. ¶¶ 2, 24; Pls.' 56.1 Stmt. ¶ 10.)

As the two women were preparing to exit, a yellow taxicab pulled in front of the car. (Am. Compl. ¶¶ 2, 25; Defs.' 56.1 Stmt. ¶ 11.) According to Plaintiffs, a man jumped out of the taxi, and pointed a gun directly at the windshield. (Am. Compl. ¶ 26; Pls.' 56.1 Stmt. ¶¶ 38-41.) Two other men also exited the yellow vehicle. (Am. Compl. ¶ 27; Pls.' 56.1 Stmt. ¶ 40.) The Plaintiffs allege that they "were frightened and believed their lives were in danger." (Am.Compl.¶ 33.) According to Rowley, he and others were screaming at the time, "like crying screaming, like I am going to die screams, not specific words, but screaming." (Rowley Dep. at 90.) Rowley, who claims to have thought he was being carjacked or the victim of a racially motivated assault (Pls.' 56.1 Stmt. ¶ 46), proceeded to duck his head behind the steering wheel, put his car in reverse, and drive backwards "to escape." (Am. Compl. ¶ 34; Defs.' 56.1 Stmt. ¶ 16; Pls.' 56.1 Stmt. ¶ 16.) When he hit "an object" behind him, he drove forward and "hit another object." (Am.Compl.¶ 34.) With his head still lowered, Rowley proceeded to repeat the sequence before stopping the vehicle. (Am. Compl. ¶ 34; Defs.' 56.1 Stmt. ¶ 20; Pls.' 56.1 Stmt. ¶ 20.) When his car finally came to a standstill, one of the individuals who had emerged from the taxicab smashed the driver's side window. (Am. Compl. ¶ 35; Pls.' 56.1 Stmt. ¶ 51.) According to Plaintiffs, a gun was held to Rowley's head (Pls.' 56.1 Stmt. ¶¶ 26, 52) and Rowley was pulled from the car through the smashed window. (Am. Compl. ¶¶ 36-37; Pls.' 56.1 Stmt. ¶ 53.)

What seemed at the time to Plaintiffs to be a carjacking or an assault, was actually a police stop. The yellow taxicab was in fact an undercover police unit, and the individual who pointed the gun at the Camry was an undercover police officer dressed in plainclothes. (Am.Compl.¶¶ 2-3, 32.) Defendant Joseph Pollack was riding in the undercover taxi vehicle with Defendants Robert Williamson and John Katehis that night. (Defs.' 56.1 Stmt. ¶ 4; Pls.' 56.1 Stmt. ¶ 4.) According to Defendant Pollack, the Camry attracted his attention, so he ran the car's license plate through a police computer inside his car, which indicated the vehicle was stolen. (Defs.' 56.1 Stmt. ¶¶ 3, 5; Pls.' 56.1 Stmt. ¶ 5.) The officers decided to stop the car, and Pollack radioed for a backup unit. (Defs.' 56.1 Stmt. ¶¶ 6-7; Pls.' 56.1 Stmt. ¶¶ 6-7.) The call was picked up by Defendant uniformed police officers Scott Sweeney, David Nedd, and Richard Hewitt, who were in an unmarked Ford Crown Victoria, which pulled in behind the Camry. (Defs.' 56.1 Stmt. ¶¶ 8, 12, 15; Pls.' 56.1 Stmt. ¶ 8.) The "object" Rowley hit behind him was the Crown Victoria and the "object" that he hit in front of him was the taxicab. (Pls.' 56.1 Stmt. ¶¶ 17, 19.)

The men in the yellow taxi were not wearing police uniforms (Defs .' 56.1 Stmt. ¶ 14), and Plaintiffs allege that the men did not have badges identifying themselves as police officers, did not inform the Plaintiffs that they were police officers, and Plaintiffs further allege that none of them heard police sirens. (Am. Compl. ¶¶ 28-31; Pls.' 56.1 Stmt. ¶ 15.)

According to Defendants, officers from both the cars approached the Camry. (Defs.' 56.1 Stmt. ¶ 13.) Also according to Defendants, while Rowley was moving his car backwards and forwards, Defendant Pollack "was forced to jump over a concrete barrier in order to avoid being killed or having his legs crushed." (Defs.' 56.1 Stmt. ¶ 21.) Defendants allege that Defendant Sweeney had to jump over a barrier twice (id. at ¶ 22), and that Defendant Hewitt "had to jump into a lane of traffic to avoid being pinned between his car and the Camry." (Id. at ¶ 21.) Defendant Nedd also was struck in the leg by Plaintiff's vehicle. (Id. at ¶ 25.) Plaintiffs dispute the seriousness of the danger in which Defendants allege they were placed by Plaintiff Rowley's actions. Plaintiffs allege that Defendant Pollack was out of harm's way, "but rashly jumped in front of the moving vehicle, and started trying to pull [Plaintiff] Gilbert out of the car." (Pls.' 56.1 Stmt. ¶ 21.) Plaintiffs further allege that Defendant Sweeney "hopped" over the concrete barrier instead of being forced to jump over it. (Id. at ¶ 22.) Plaintiffs also dispute whether the Camry came right at Defendant Hewitt, and whether he was forced to jump into a lane of traffic. (Id. at ¶¶ 23-24.) And finally, Plaintiffs dispute the seriousness of Nedd's wound, claiming that his leg was merely "nicked." (Id. at ¶ 25.)

Also disputed is the nature of the impact of Rowley's car with the taxi and the Crown Victoria. Plaintiffs describe the impact with the Crown Victoria as a "bump" and the impact with the taxi as an "abrupt stop." (Id. at ¶¶ 17, 19, 20.) Defendants characterize the impact as crashing into the Crown Victoria and taxi. (Defs.' 56.1 Stmt. ¶¶ 16, 17, 19, 20.)

After he was removed from the vehicle, the officers handcuffed Rowley and subsequently "hit, punched, kicked and hit with a hard object," and cut his hand. (Am. Compl. ¶¶ 38-41; Pls.' 56.1 Stmt. ¶ 55.) Plaintiff Gilbert also was forcibly pulled from the car and allegedly beaten. (Am. Compl. ¶¶ 42-47; Pls.' 56.1 Stmt. ¶ 57.) Specifically, Gilbert alleges he was "punched and received many blows to his body and head from two police officers while he was lying on the ground." (Am.Compl.¶ 44.) Gilbert and Rowley's handcuffs caused them both pain. (Id. at ¶¶ 68-69.) Police officers also ordered the backseat passengers, Sudeall and Lim, to get out of the car. (Am. Compl. ¶¶ 51, 57; Pls.' 56.1 Stmt. ¶ 59.) Both Sudeall and Lim were handcuffed tightly causing "extreme pain." (Am.Compl.¶¶ 54-55, 59-60.)

Rowley's vehicle previously was stolen on November 6, 1999 and later was recovered by the police. (Pls.' 56.1 Stmt. ¶¶ 71, 72.) Rowley retrieved his car on November 19, 1999. (Id. at ¶ 74.) According to Rowley, in December of 1999, Plaintiff Rowley had lent his car to a friend, who was stopped by police officers on suspicion of the car being stolen, because the "alarm" on the car was still active.*fn2 (Id. at ¶¶ 75, 77.) However, those officers permitted Rowley's friend to call him and tell him the situation. (Rowley Dep. at 60-62.) Rowley ran to the scene and produced the documents thatproved the car was his, that it had been stolen, and that he had reclaimed it the month before. (Id.) According to Rowley, the police at the time told him they would remove the alarm. ((Pls.' 56.1 Stmt. ¶ 77.)

After being handcuffed the night in question, all the Plaintiffs were transported to the 13th Precinct. (Defs.' 56.1 Stmt. ¶ 27; Pls.' 56.1 Stmt. ¶ 27; Am. Compl. ¶¶ 61, 66.) According to Rowley, he was bleeding profusely from his hand and a police officer or emergency medical technician helped him wash and bandage it at the precinct. (Am.Compl.¶ 72.) All the Plaintiffs were charged with grand larceny auto. (Defs.' 56.1 Stmt. ¶ 28; Pls.' 56.1 Stmt. ¶ 28.) However, Defendants eventually learned that the vehicle was not in fact stolen. (Defs.' 56.1 Stmt. ¶ 29.) The precise time when Defendants learned that the car was not stolen is in dispute. Plaintiffs claim that Defendants discovered at the scene that the car belonged to Rowley. (Pls.' 56.1 Stmt. ¶¶ 29, 61-62.) Plaintiffs also claim that the Defendants were aware that computer information regarding stolen cars often is inaccurate. (Pls.' 56.1 Stmt. ¶ 78.) The Defendants voided the arrests of Gilbert, Sudeall and Lim, who were released from custody later that night. (Defs.' 56 .1 Stmt. ¶ 30; Pls.' 56.1 Stmt. ¶ 30.) Defendants also dropped the charge of grand larceny auto against Plaintiff Rowley, but he was charged with reckless endangerment in the first degree "because of his actions with his vehicle." (Defs.' 56.1 Stmt. ¶¶ 31-32; Defs.' 56.1 Stmt. Exhbt C; Pls.' 56.1 Stmt. ¶¶ 31, 32.) According to Rowley, while he was kept in a cell, Defendant Williamson told him he would be charged with a felony. (Am.Compl.¶ 73.) Plaintiff Rowley was released the following evening. (Defs.' 56.1 Stmt. ¶¶ 31-32; Pls.' 56.1 Stmt. ¶ 33.)

A complaint was filed in the Criminal Court of the City of New York, New York County, charging plaintiff Rowley with two misdemeanors: reckless endangerment and reckless driving. (Id. at ¶ 77.) The charges were dismissed on or about February 25, 2000. (Id. at ¶ 77.)

Four written notices of claim, sworn to by the Plaintiffs, were served upon the Defendants by personal delivery. (Id. at ¶ 78.) Plaintiffs filed an Amended Complaint on June 29, 2000, and Defendants filed an Answer on August 3, 2000. On May 31, 2002, Defendants moved for partial summary judgment as to Plaintiffs' claims for false arrest, malicious prosecution, and negligent hiring, retention and training. Plaintiffs opposed the motion and Defendants submitted a reply memorandum of law in support of partial summary judgment. In a letter dated May 31, 2002, Plaintiffs argued Defendants' reply memorandum raised new arguments not raised in the motion papers and that the Court must ignore those issues raised for the first time in the reply memorandum. Defendants responded in a letter dated June 11, 2002, and Plaintiffs responded to Defendants' letter the same day.


A. Summary Judgment Standard

The principles applicable to summary judgment are familiar and well settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Corselli v. Coughlin, 842 F.2d 23, 25 (2d Cir.1988). A material fact is one whose resolution would "affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248; Corselli, 842 F.2d at 25. Thus, "the plain language of Rule 56(c) mandates the entry of summary judgment, ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. See Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986); see also LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir.1995). As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991). Finally, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not ...

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