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Weir v. City of New York

August 11, 2008

JOHN K. WEIR, PLAINTIFF,
v.
THE CITY OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge

This is not an ECF case.

OPINION AND ORDER

Pro se plaintiff John K. Weir, who is also an attorney, alleges as follows. In 1999, while driving to attend a court conference in Goshen, New York, he was stopped by a policeman and given a summons charging him with speeding. Weir pleaded not guilty and received notice of a hearing date. He telephoned and requested a postponement. Weir says: "I was advised, to the best of my recollection, that the hearing would not go forward because the arresting officer was not available to appear, and that I would be notified of a new date." (4/30/07 Weir statement, ¶¶ 3- 6.) Weir says he received no further notice; apparently he made no follow-up inquiry. In late 2002 or early 2003, he renewed his Connecticut driver's license "with no indication that the Connecticut DMV had received any notice of New York's alleged action to suspend my driving privileges." (Id. at ¶ 11.)

However, as Weir learned much later, the New York DMV's Abstract of Driving Record for him contained the following notations:

NO NY LICENSE

SUSP/REV SUMMARY: Total 1 (SCOFFS 1 ON 1 DATES) JUDGEMENT $0

SUSPENSIONS/REVOCATIONS

SUSPENSION: 09/07/2001 FLD ANSWER SUMMONS ORDER #T828889

LOCATION: ORANGE COUNTY, TOWN OF GOSHEN.

*** END OF RECORD ***

(A copy of that Abstract is page NYC37 annexed to Defendant's 6/7/07 Initial Disclosure.)

On June 15, 2004, shortly before midnight, a New York City police officer stopped Weir in Manhattan for allegedly making a right-hand turn on a red light. The officer did a computer check at the scene and "determined that I [Weir] had lost my driving privileges in the State of New York in September 2001." (4/30/07 Weir statement at ¶¶ 7-8.) The officer handcuffed Weir, held him at a stationhouse for six hours before issuing a desk appearance ticket, and advised Weir to "clear up" the Orange County matter.

(Id. at ¶ 12.)

Weir promptly contacted the Goshen Town Court, which gave him a trial date of September 21, 2004, at which time the judge ordered dismissal of the 1999 speeding charge. (Id. at ¶¶ 13- 14.) In Manhattan Criminal Court, on December 9, 2004, a judge instructed the Manhattan prosecutor to enter a three-month Adjournment in Contemplation of Dismissal ("ACD") on the charges of aggravated unlicensed operation of a motor vehicle in the third degree (VTL § 511(1)) and operating a vehicle on a public highway when not duly licensed (VTL §509(1)); Weir accepted the ACD. (Id. at ¶¶ 16-18; Complaint ¶ 18.)

On or about May 29, 2005, Weir filed a Notice of Claim with the Comptroller of the City of New York. (Complaint ¶ 7.) On June 16, 2005, Michael Aronson, Chief of the Comptroller's Bureau of Law and Adjustment, responded by letter. (8/10/06 Weir statement at ¶ 9 and Exh. C.) On September 15, 2005, Weir filed the Complaint in our Court; his Civil Cover Sheet requested that this case be assigned to the White Plains courthouse.*fn1 (Id. at ¶¶ 5-11.) Weir alleges that he mailed Mr. Aronson a copy of the Complaint and a Request for Waiver of Service by Summons. (Id. at ¶ 12 and Exh. D.) The City's Law Department apparently received no notice of this lawsuit until July 2006. (Id. at ¶ 14.)

The Complaint names only one defendant, the City of New York. It alleges three causes of action:

1. False arrest and false imprisonment on June 15-16, 2004.

2. Malicious prosecution.

3. 42 U.S.C. § 1983: "Defendant City of New York engaged in conduct which substantially deprived Plaintiff of his civil rights, specifically his right to be free from unlawful search and seizure under the Fourth Amendment, his right to be free from unwarranted invasions of his privacy under the First Amendment, his rights to be free from cruel and unusual punishment under the Eighth Amendment, and his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, as well as corresponding rights under the Connecticut or New York State Constitutions.

(Cplt. ¶32.) He invokes jurisdiction under 28 U.S.C. § 1331, and, because he is a Connecticut citizen, also under §1332. On July 18, 2007, the case was assigned to me for all purposes on consent of the parties pursuant to 28 U.S.C. 636(c).

The City served and filed an Answer on June 8, 2007. On August 9, 2007, the City filed a Notice of Motion to Dismiss pursuant to Fed.R. Civ.Pr. Rule 12(c) (Docket Item # 16), accompanied by a Memorandum of Law ("City Mem.") (Docket Item # 15).

On September 11, 2007, Mr. Weir submitted a Notice of Motion to Amend the Complaint to add individual defendants and to add a cause of action for assault and battery (Docket Item # 20); the motion annexed a Memorandum of Law in Opposition to Defendant's Motion for Judgment on the Pleadings and in Support of Plaintiff's Motion to Amend the Complaint ("Weir Mem.").

On September 27, 2007, the City served and filed a Reply Memorandum in Further Support of Its Motion to Dismiss and in Opposition to Plaintiff's Motion to Amend the Complaint ("City Reply") (Docket Item # 19).

Mr. Weir responded in a letter brief dated October 5, 2007 ("Weir Reply") (Docket Item # 21).

The Complaint

The Complaint details the underlying facts as follows:

9. At approximately 11:30 p.m. on June 15, 2004, Plaintiff, together with his wife, was lawfully proceeding in a vehicle at the intersection of First Avenue and the 96th St. entrance to the FDR Drive, in Manhattan when he was unjustifiably stopped for a traffic infraction by Police Officer Stephen Janec of the New York City Police Department.

10. Despite Plaintiff's protestations, and despite the presentation to Police Office[r] Janec of a valid and current Connecticut driver's license, Plaintiff was falsely charged by the arresting officer with driving in New York with a suspended license.

11. Despite confirming the validity of Weir's license several times, Plaintiff was nevertheless ordered by Police Officer Janec to exit the vehicle, and to place his hands on the roof of the vehicle. The vehicle was then unlawfully searched, while Plaintiff remained spread-eagled next to his car, in full view of his wife, several other police officers and numerous passing motorists.

12. Police Officer Janec then ordered Plaintiff to put his hands behind his back, and proceeded to handcuff the Plaintiff so tightly that circulation to his hands was cut off, Plaintiff was then physically pushed into the back seat of a police car, by two police officers, together with another person who was also being arrested at the site.

13. Police Officer Janec falsely advised Plaintiff at the scene that he was to be arraigned before a Judge of the Criminal Court that night, which falsity was uttered maliciously with full knowledge that no such arraignment would occur until 9:30 a.m. the next morning at the earliest, and that Plaintiff would be forced to spend the intervening hours in a jail cell.

14. In the early morning hours of June 16, 2004, Plaintiff was driven to a police precinct station in midtown Manhattan, where he was interrogated, had his tie and belt removed from his person against his will; had his wallet and Driver's license taken from him, was imprisoned in a cell with two other prisoners, was fingerprinted on two separate occasions; had his "mug shot" taken; was prevented for a time from going to the bathroom and then was allowed to do so only under close supervision of Police Officer Janec; and was repeatedly and falsely accused of a misdemeanor offense of driving with a suspended license, despite Plaintiff's presentment of a confirmed valid driver's license issued by the State of Connecticut, and Defendant's police check of criminal records which indicated that Plaintiff had no criminal history of any kind.

15. Plaintiff and his wife repeatedly entreated various police officers at the precinct station that the charges were baseless, and that as a 57-year-old attorney in good standing in the State of New York who had practiced law for over 32 years in this jurisdiction, Plaintiff did not deserve to be treated in this manner. Despite these entreaties, the incarceration continued until approximately 6 a.m. on June 16, 2004, with Police Officer Janec deliberately and maliciously prolonging procedures necessary to Plaintiff's release from imprisonment.

16. After approximately six (6) hours of incarceration, Plaintiff was issued a desk warrant, and told to appear in Criminal Court on a date certain in July, 2004, upon pain of being arrested again and charged with additional violations of law.

17. Plaintiff did appear under compulsion in the Criminal Court, 110 Centre St., in lower Manhattan on four separate occasions in July, 2004; October, 2004; November, 2004; and December, 2004 to answer to charges representing misdemeanor violations of the Vehicle and Traffic Law ("VTL"). On each such occasion, Plaintiff acted as his own counsel and protested his innocence of this charge to the Court and to the prosecutor, with supporting reasons. Defendant, acting through various representatives of the District Attorney's office who appeared on those occasions, refused willfully, maliciously and recklessly, to entertain any dismissal of the alleged VTL violations on each such occasion.

18. At the time of the final court appearance, on or about December 9, 2004, the Court directed that the prosecutor assigned to this case, Louis Rodriguez, Esq., enter into an Adjournment in Contemplation of Dismissal, and further directed Mr. Rodriguez to shorten the period after which such a dismissal would occur from 6 months until 3 months, i.e. until on or about March 9, 2005.

19. Despite the Court's specific instruction, Plaintiff has received no notification that Defendant has in any way complied with the Court's directive to dismiss this case on or about March 9, 2005, this in an apparent effort to ...


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