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Malay v. City of Syracuse

July 14, 2009

EILEEN M. MALAY, PLAINTIFF,
v.
CITY OF SYRACUSE; GARY W. MIGUEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE SYRACUSE CITY POLICE DEPARTMENT; JOHN DOE 1, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A COMMANDING OFFICER IN THE SYRACUSE CITY POLICE DEPARTMENT; AND JOHN DOES 2-10, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS IN THE SYRACUSE CITY POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

Plaintiff, Eileen M. Malay ("Plaintiff"), commenced this action against defendants City of Syracuse ("City"); Gary Miguel, Chief of Police for the Syracuse Police Department ("Miguel"); John Doe 1, commanding officer ("Doe 1") and John Does 2 through 10, police officers ("Does 2 through 10") (collectively, "Defendants") alleging the violation of her rights under the United States and New York State Constitutions as well as certain tort claims under New York common law. Presently before the court is a motion by Defendants to dismiss this action in its entirety for failure to state claims upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposes and Defendants reply. Resolution of this motion is based on the papers submitted, without oral argument.

II. Factual Background

The court accepts, as it must, the following allegations in Plaintiff's complaint ("the Complaint") as true for purposes of deciding the present motion. See supra, at 5.

At the time of the events giving rise to this action, Plaintiff lived in a first-floor apartment at 303 Gere Avenue in Syracuse, New York. Plaintiff's landlord lived in the apartment immediately adjacent to Plaintiff's apartment, also on the first floor of the residence. On the afternoon of March 17, 2007, Plaintiff was home alone in her apartment when unbeknownst to her, police responded to a report of gunfire both inside and outside the residence at 303 Gere Avenue. The police arrived at approximately 3:49 p.m. Within approximately the first half hour after police arrived on the scene, Defendants learned from two separate sources that Plaintiff was inside her apartment. At some point, police proceeded to evacuate residents and neighbors of 303 Gere Avenue, not including Plaintiff. At approximately 6:21 p.m., police, including defendants Does 2 through 10, initiated an assault upon the house while Plaintiff was still inside, and still unaware of the events taking place outside of, and in the apartment adjacent to her apartment.

At that time, Plaintiff was in her living room watching a movie, when the windows exploded inward, as someone was shooting explosive rounds into her apartment. Plaintiff fled in total fear from room to room and to different hiding spaces within the apartment, in an attempt to avoid being shot. Eventually, Plaintiff grabbed her cell phone and ran into the basement, at which time she began to notice the gas in her apartment. Plaintiff experienced a fierce burning of her skin and mouth, blurring of her vision, and violent coughing.

At approximately 6:27 p.m., Plaintiff used her cell phone to call 911 and report the gunfire and gas being pumped into her apartment. During the 911 call, Plaintiff was connected to a City of Syracuse police officer. Plaintiff told the officer her location within the apartment, as well as the location of one of the doors to her apartment. The officer instructed Plaintiff to remain inside the apartment until other officers could come and tell her when to leave.

At approximately 6:38 p.m., an officer pounded on Plaintiff's door and yelled to her to come out. When Plaintiff opened the door, three officers were present. One of the officers, yelled, "Come out now!" after which Plaintiff ran out of the apartment and into the street. Without guidance from the officers, Plaintiff ran across the street toward a neighbor's house, exposing herself to potential gunfire from the assailant who remained inside the residence at 303 Gere Avenue.

When Plaintiff reached the middle of the street, she heard an officer yell, "No! No! Run toward the van!" After Plaintiff stopped running, she saw a police emergency van. Plaintiff then began running toward the van, again completely exposed to the gunman.

Once inside the van, Plaintiff saw several officers. Plaintiff was still suffering from the effects of the CS gas, including burning skin, mouth, lungs and throat as well as blurred vision, dizziness, labored breathing and coughing. One of the officers suggested Plaintiff be looked at by an Emergency Medical Technician, but another officer replied, "No, I really need her to diagram the house right now."

Plaintiff was questioned by police officers for two and a half hours, and thereafter was placed in a police cruiser and was told to remain there in case she was needed for further information. At no time was Plaintiff seen by any medical personnel, nor was she provided with any treatment for the exposure to CS gas. Plaintiff was also not provided with a change of clothes.

At 9:00 p.m., Plaintiff was told her assistance was no longer needed, and she was allowed to call her son to come and pick her up at a nearby restaurant. While an officer escorted Plaintiff to the restaurant, she was not offered a ride to the hospital nor was she advised to seek medical attention or given any information about the effects of CS gas exposure. Plaintiff continues to suffer the effects of the events of March 17, 2007, including the physical, mental and emotional effects of the exposure to CS gas, as well as the loss of her personal items inside her apartment at 303 Gere Avenue.

III. Discussion

By the filing of the Complaint, Plaintiff purports to allege nine separate causes of action, including four claims pursuant to 42 U.S.C. § 1983 as predicates to claims for violation of her federal constitutional rights, one claim for violation of her rights under the New York State Constitution, and four separate negligence claims under New York common law. Defendants seek dismissal of the entire Complaint for failure to state claims upon which relief may be granted.

A. Legal Standard

When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the allegations of fact in the complaint as true, drawing all reasonable inferences in the plaintiff's favor. See World Religious Relief, Inc. v. Sirius Satellite Radio, Inc., No. 05-CV-8257, 2007 WL 2261549, at *1 (S.D.N.Y. Aug. 7, 2007) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). In addition to the factual allegations in the complaint, the court may also consider "documents attached to the complaint as exhibits or incorporated by reference, [...] matters of which judicial notice might be taken, and [...] documents either in plaintiff[s'] possession or of which plaintiffs had knowledge and relied on in bringing suit." Muller-Paisner v. TIAA, 446 F.Supp.2d 221, 226-227 (S.D.N.Y.2006) (citing Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (internal citations omitted)) (rev'd in part on other grounds, No. 06-4307-cv, 2008 WL 3842899 (2d Cir. Aug. 15, 2008). Thus, "the Court may only consider a document not appended to the complaint if the document is incorporated in [the complaint] ...


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