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Banushi v. City of New York

September 28, 2006

ROBERT BANUSHI, PLAINTIFF,
v.
THE CITY OF NEW YORK, POLICE OFFICER ROBERT PANNISI (NYPD) SHIELD NO. 16675, "JANE AND JOHN DOE" UNKNOWN NYPD OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Banushi ("Banushi") brings this action against defendants The City of New York ("City"), Police Officer Robert Pannisi (NYPD) Shield No. 16675, and "Jane and John Doe" Unknown NYPD Officers ("Jane Doe" and "John Doe"), alleging violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and common law claims of prima facie tort and fraud,*fn1 seeking compensatory and punitive damages, plus reasonable attorneys' fees, costs, and disbursements pursuant to 42 U.S.C. § 1988. Plaintiff alleges that following an assault outside a Brooklyn delicatessen, Officer Pannisi and other police officers violated his rights by not arresting his assailants and by refusing to provide plaintiff with a police report of the incident, compromising plaintiff's ability to pursue personal injury claims against his attackers.

Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn2 Defendants seek dismissal of plaintiff's complaint, arguing: (1) that plaintiff's claims are time-barred; (2) that plaintiff's equal protection claims fail as a matter of law because he cannot show that he was treated differently than other similarly situated individuals; (3) that plaintiff's claim based on a failure to protect him fails as a matter of law because he does not establish that defendants had a duty to protect him or that a special relationship existed giving rise to such a duty; (4) that the pendent state law claims should be dismissed because plaintiff has failed to file a timely notice of claim; and (5) that plaintiff fails to state claims for prima facie tort or fraud.*fn3 For the reasons that follow, defendants' motion for summary judgment is granted since all claims are barred under the applicable statutes of limitations.

Background

The following facts are taken from the parties' submissions in connection with this motion, including plaintiff's complaint, depositions, affidavits, exhibits, and Rule 56.1 statements. Disputes are noted.

On April 11, 1995, Robert Banushi, who describes himself as Albanian, was attacked outside a Brooklyn delicatessen by two brothers Kosta and Jimmy Lambrakos and another individual named Stefano Evangelis. Banushi suffered a broken ankle as a result of the attack. Police officer Pannisi and other unidentified officers responded to the scene of the assault. Plaintiff alleges that medical records falsely state that his injury was caused by a fall from a bicycle.

Six months after the attack, in late 1995, plaintiff obtained the number of the police report he believed Officer Pannisi filed subsequent to the attack. On February 7, 1996, Banushi filed a civil complaint against his assailants in New York state court seeking to recover damages for his injuries. Plaintiff's counsel withdrew from that case in March. In October 1996, plaintiff went to the police station to obtain a copy of the police report. In response to his request, an unidentified police station employee handling such queries said "we don't have the police report." Banushi asked, "Why? Where is it?", and the employee replied "we don't know." She gave him a form to complete and mail back regarding the missing report. He returned to the precinct several times to inquire about the missing report, and each time, was instructed to complete and mail back the form. Plaintiff returned a completed form in October or November 1997, and received a letter from the Criminal Records Section in April 1998, which stated that the police report had been voided and the index number re-used. Plaintiff states that he took no other steps to obtain the report between mid-1996 and April 1998 because he was "looking for a lawyer."

After he received the April 1998 letter from Criminal Records, Banushi hired a second lawyer to represent him in his action against his assailants and to investigate what happened to the police report. With his lawyer, plaintiff met with a detective who said he would find the report. Plaintiff states that he did not follow up with the detective because he "had a lawyer handling this." The lawyer informed him that the report was "lost" or "missing" and that "the detective is working on this." After this lawyer withdrew his representation as well, plaintiff did not contact the detective.

On November 19, 2001, in preparation for the civil trial of plaintiff's claims against his attackers, plaintiff, representing himself, requested again a copy of the police report concerning the incident from the New York Police Department. Again the Department did not provide one. The Department's Internal Affairs office informed Banushi that the report was "not in the system" and that the police report number that Banushi provided corresponded to a statement regarding a different case. The complaint alleges that Officer Pannisi either fraudulently "voided" the police report or never made the police report. In place of the requested report, Internal Affairs gave plaintiff a Verification of Crime/Lost Property report dated December 12, 2001, nearly six years after the incident and shortly after his request. In March 2002, during the trial, the jury asked to see the police report allegedly prepared by Officer Pannisi, but Banushi states that the Lost Property report that Internal Affairs provided "did not suffice" and the jury found for Banushi's assailants.

On March 4, 2004, Banushi's attorney told plaintiff that Officer Pannisi's lack of filing a police report was "fraudulent." On May 26, 2004, plaintiff commenced this action in the Eastern District of New York against the current defendants and the New York Police Department. On March 15, 2005, I granted defendants' motion to dismiss and granted plaintiff leave to re-plead his claims within thirty days. Plaintiff filed his most recent complaint on April 11, 2005.

Discussion

Jurisdiction

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, which creates jurisdiction over civil actions arising under federal law; 28 U.S.C. § 1343, which creates jurisdiction over actions arising under 42 U.S.C. § 1983; and 28 U.S.C. § 1367, ...


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