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Wong v. Yoo

August 18, 2009

AARON WONG, PLAINTIFF,
v.
POLICE OFFICER YOUNG YOO, SERGEANT ANTHONY ALFANO, POLICE OFFICER STEPHEN VIANI, JAMES MANGONE, AND DETECTIVE LEONARD CIURCINA, DEFENDANTS.
POLICE OFFICERS YOUNG YOO AND STEPHEN VIANI, THIRD-PARTY PLAINTIFFS,
v.
THE CITY OF NEW YORK, THIRD-PARTY DEFENDANT.



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

MEMORANDUM OPINION & ORDER

On September 25, 2004, plaintiff Aaron Wong commenced this action against defendants James Mangone, police officer Young Yoo, police officer Stephen Viani, sergeant Anthony Alfano, and detective Leonard Ciurcina. Plaintiff alleges that defendants used excessive force against him, falsely arrested and imprisoned him, denied medical treatment to him, and maliciously prosecuted him, in violation of 42 U.S.C. § 1983. He also alleges that defendants intentionally discriminated against him, in violation of 42 U.S.C. § 1981, and conspired to deprive him of his rights under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1985. On June 1, 2007, defendants Yoo and Viani filed a third-party complaint against third-party defendant the City of New York (the "City"), alleging that they were denied their right to representation and seeking indemnification.

Presently before this Court are defendants' separate motions for summary judgment on plaintiff's claims, as well as third-party defendant City's motion for summary judgment on third-party plaintiffs Yoo's and Viani's claims. For the reasons set forth below, defendants' motions are granted in part and denied in part, and third-party defendant's motion is granted in part and denied in part.

BACKGROUND

The following facts are drawn from the deposition testimony, affidavits, exhibits, and Rule 56.1 statements submitted by the parties in connection with this matter. Disputes are noted.

Events of May 16, 2003

On the afternoon of May 16, 2003, plaintiff was driving with his girlfriend, Brook Lopez, on Staten Island in New York. Deposition Testimony of Aaron Wong dated February 13 and March 22, 2006 ("Pl. Dep.") at 18, 137, 148-49. Ms. Lopez, a hispanic female who was 19 years old at the time, had plans to purchase a Playstation video game system for plaintiff, a 5'9", 145-pound, African American male who had celebrated his 21st birthday the day before. Id. at 10-11, 133, 137-38; Deposition Testimony of Brook Lopez ("Lopez Dep.") at 11, 38-39. On the way to an outlet mall, while driving on Jewett Avenue, plaintiff placed a call on Ms. Lopez' cell phone to two of his friends. Pl. Dep at 149; Lopez Dep. at 45, 75. Ms. Lopez scolded him for using the cell phone while driving and asked him to pull over. Lopez Dep. at 45-46.

Since there was no place to pull over on Jewett Avenue, plaintiff took a left turn near Burnside Avenue and pulled into a driveway leading to a parking lot located at 168 Ravenhurst Avenue. Id; Pl. Dep. at 152; Deposition Testimony of James Mangone ("Mangone Dep.") at 13. According to plaintiff, the driveway looked more like a public street than a private driveway. Pl. Dep at 153. A residential complex was adjacent to the parking lot. Id. at 154. Plaintiff put his car in reverse and backed up into a parking spot against a wall. Id. While plaintiff was on the phone, a truck pulled in front of plaintiff's car, blocking it. Id. at 158; Lopez Dep. at 57. A 6'1", 250-pound, white male, later identified as defendant James Mangone, exited the truck and approached plaintiff's car. Pl. Dep at 159, 161; Mangone Dep. at 29-30.

The parties dispute the nature of subsequent events. According to plaintiff and Ms. Lopez, defendant Mangone stuck his head and shoulders through the driver's side window of plaintiff's car, pushing the side-view mirror in toward the car, and yelled words to the effect of:

I'm tired of you niggers being here. I'm tired of you niggers always here with your coke and your crack, and you throw your dirty [vials] on the floor and you take your dirty condoms after you finish fucking and put them on the floor. I'm tired of this shit. You niggers don't belong here. . . . Do you know anybody here? I bet you don't know anybody here. Who do you know here? You niggers don't know anybody here.

Id. at 159-60, 174-76; Lopez Dep. at 60-61. According to defendant Mangone, however, using a moderate tone of voice, defendant Mangone asked plaintiff and Ms. Lopez what their business was in the parking lot without touching or leaning on plaintiff's car. Mangone Dep. at 53-54, 57. Defendant Mangone alleges that plaintiff replied, "none of your fucking business." Id. at 53. There is no dispute, however, that plaintiff falsely informed defendant Mangone that he knew someone who lived in the complex. Mangone Dep. at 53-54; Pl. Dep. at 164.

Plaintiff and Ms. Lopez allege that they repeatedly asked defendant Mangone to allow them leave the parking lot. Pl. Dep. at 167; Lopez Dep. at 62. According to them, defendant Mangone stated that he would not allow them to leave, and that he was going to call 911 and the police. Pl. Dep. at 167; Lopez Dep. at 62. Defendant Mangone alleges, however, that plaintiff appeared "enraged" following their exchange and bolted out of his car, opening his car door quickly and hitting defendant Mangone in the hip with the driver's side-view mirror in the process. Mangone Dep. at 56. At that point, according to defendant Mangone, he told plaintiff that he would call 911. Id. at 57. According to plaintiff, however, plaintiff exited his car to fix the side-view mirror defendant Mangone had pushed in when he leaned into the car and to "get [defendant Mangone] away from the car." Pl. Dep at 177. There is no dispute that defendant Mangone took his phone from his belt and, rather than calling 911, used the Nextel function to call a man later identified as defendant Leonard Ciurcina, who he asked to "come to the back." Mangone Dep at 58; Pl. Dep. at 180, 182.

There is no dispute that while defendant Mangone was using his phone, plaintiff slapped the phone away from defendant Mangone's hand, causing it to fall to the ground. Mangone Dep. at 59; Lopez Dep. at 65; Deposition Testimony of Aaron Wong dated August 21, 2008 ("Pl. Dep II") at 51-52. Plaintiff alleges that he heard defendant Mangone say a name into the phone and realized that he was not calling the police or someone who would "deescalate the situation." Pl. Dep. II. at 52. According to plaintiff, defendant Mangone then "charged" at plaintiff and shoved him into the front of the driver's side of the car, forcing the driver's side-view mirror frame in toward the car and causing the mirror itself to pop out of its frame. Pl. Dep. at 183-85, 190. Plaintiff caught the mirror. Id. at 185.

Defendant Mangone denies having pushed plaintiff into his car or causing the mirror to pop out of its frame, alleging that the mirror popped out when plaintiff opened the door of his car too quickly, hitting defendant Mangone in the hip with the mirror frame. Mangone Dep. at 59-61.

There is no dispute that after the mirror popped out of its frame, plaintiff hit defendant Mangone on the face with the mirror, cutting him above and underneath one of his eyes and causing significant bleeding.*fn1 Mangone Dep. at 61; Lopez Dep. at 69; Pl. Dep. at 185. Plaintiff and Ms. Lopez allege that before plaintiff hit defendant Mangone with the mirror, defendant Mangone "walked up on" plaintiff and "was dodging at him with his fist up." Pl. Dep at 185; Lopez Dep. at 67. Defendant Mangone alleges that plaintiff "picked the mirror up off the floor and smashed [defendant Mangone] in the face with it." Mangone Dep. at 59-61.

At this point defendant Mangone returned to his truck, and alleges that he saw plaintiff lean inside his car and re-emerge with an open knife in his hand. Id. at 63-65. Plaintiff testified that after hitting Mangone with the mirror, he ran to the back of his car, and denies ever having reached for or used a knife during the altercation. Pl. Dep. at 191, 226. Defendant Mangone then grabbed a circular saw from a toolbox in the back of his truck and threw it in plaintiff's direction. Mangone Dep. at 66-68. The saw hit the windshield of plaintiff's car, inside of which Ms. Lopez was sitting, causing the windshield to crack and shatter but not to break. Id; Pl. Dep at 200-05; Lopez Dep. at 71. Plaintiff picked up the saw where it had fallen and threw it at defendant Mangone's truck, causing the truck's windshield to crack and shatter without breaking. Mangone Dep. at 68; Pl. Dep. at 207-08.

Defendant Mangone then returned to his truck and retrieved a metal pipe. Mangone Dep. at 69-70. He struck plaintiff's car more than once with the pipe, further damaging the windshield and the hood. Id. at 71-72; Pl. Dep. at 213. Meanwhile, plaintiff ran to the back of defendant Mangone's truck and retrieved a wooden broom handle. Mangone Dep. at 73. Ms. Lopez screamed for help and called 911 on her cell phone. Lopez Dep. at 74.

At this point, according to plaintiff, a blue car arrived on the scene and sped directly toward plaintiff. Pl. Dep. at 215. Plaintiff alleges that he jumped over the top of the car to avoid being run over, and a white male, later identified as defendant Ciurcina, a New York City Police Detective who was off-duty at the time, exited the car. Id. at 216-17. Defendant Ciurcina performed masonry work for defendant Mangone during his off-duty hours, and it was defendant Ciurcina that defendant Mangone had contacted using the Nextel function of his phone. Deposition Testimony of Leonard Ciurcina ("Ciurcina Dep.") at 7-8, 14-15; Mangone Dep. at 58. There is no dispute that on the afternoon of May 16, 2003, defendant Ciurcina was dressed in plain clothes and did not have his shield. Ciurcina Dep. at 26. According to plaintiff, defendant Ciurcina then either exited the car with a level in his hand, or grabbed a level from defendant Mangone's truck, and began swinging the level at plaintiff. Pl. Dep. at 216-17. Defendant Mangone alleges, however, that he dropped the metal pole and himself grabbed the level from his truck. Mangone Dep. at 74. Both defendants Mangone and Ciurcina allege that defendant Ciurcina did not arrive on the scene until a few minutes later. Id. at 81; Ciurcina Dep. at 18.

Plaintiff and defendant Mangone then began to strike at each other with the broom handle and the pipe or the level, respectively, in a sword-fighting manner. At some point, plaintiff either backed away or turned and ran from the parking lot around a corner toward Jewett Avenue. Defendant Mangone followed. Pl. Dep. at 219-21; Mangone Dep. at 74-78. Ms. Lopez recalls that seconds after plaintiff and defendant Mangone left her field of vision, defendant Ciurcina arrived on the scene, grabbed a level from defendant Mangone's truck, and ran after plaintiff and defendant Mangone. Lopez Dep. at 80-81. During the scuffle, plaintiff alleges that his clothes were torn up and ripped off, and that his wallet, asthma pump and knife fell out of his pocket. Pl. Dep. at 224-25.

According to plaintiff, a third white male then arrived on the scene, later identified as non-party Port Authority police officer Robert Essex, who lived in a nearby house and had learned of the fight. Id. at 233-35; Affidavit of Robert Essex*fn2 ("Essex Aff.") ¶ 1. Officer Essex recalls that plaintiff was bleeding from his face and appeared dazed when he encountered him. Essex Aff. ¶ 1. Officer Essex pointed his gun at plaintiff and ordered plaintiff to stop walking and to drop his weapon. According to Officer Essex, an unidentified white male then approached plaintiff from behind and, without warning, hit plaintiff over the right side of his head with a level. Id. Officer Essex then pointed his gun at the unidentified white male who had struck plaintiff. The white male dropped the level and told Officer Essex he was "on the job," which Officer Essex interpreted to mean that the man was a police officer. Id.

Plaintiff does not remember what transpired after Officer Essex ordered him to stand down, but recalls waking up lying face down with defendant Mangone's foot on his neck and defendant Ciurcina's knee on his back, with defendant Cirucina holding his hands behind his back. Pl. Dep. at 238-40. Ms. Lopez also recalls turning the corner from the parking lot and coming upon the three men in this position. Lopez Dep. at 82-83, 91, 93-94. Plaintiff's mouth was partially dried shut with blood, and upon regaining consciousness, he spit out three or four pieces of his teeth. Pl. Dep. at 241-42.

In contrast, according to defendant Mangone, after plaintiff ran from the parking lot around the corner toward Jewett Avenue, defendant Mangone followed and came upon plaintiff lying face down on the ground with a crowd surrounding him. Mangone Dep. at 78. Defendant Mangone knelt down next to plaintiff. Id. at 81. At this point, defendants Mangone and Ciurcina allege that defendant Ciurcina arrived on the scene. Id. at 81; Ciurcina Dep. at 18-19. Defendant Ciurcina recalls that when he reached defendant Mangone, Mangone told him, "A male just tried to stab me." Ciurcina Dep. at 19. Defendant Mangone recalls that at some point, he put his knee on plaintiff's back "to make sure he wouldn't go anywhere," and defendant Ciurcina testified that he grabbed plaintiff's arms and put them behind his back. Mangone Dep. at 90, Ciurcina Dep. at 22. Both defendants Mangone and Ciurcina noticed that plaintiff was bleeding from his head and face. Mangone Dep. at 81, Ciurcina Dep. at 23.

At some point thereafter an ambulance and two uniformed police officers, later identified as defendants Yoo and Viani, arrived. Pl. Dep. at 243. Defendant Yoo is an Asian male, and his partner, defendant Viani, is a white male. Ciurcina Dep. at 25; Deposition Testimony of Young Yoo ("Yoo Dep.") at 9; Deposition Testimony of Stephen Viani ("Viani Dep.") at 7. Defendant Ciurcina does not recall whether he identified himself as a police officer to defendants Yoo and Viani, but testified that he probably did. Ciurcina Dep. at 26. According to defendant Ciurcina, either defendant Yoo or defendant Viani handed him handcuffs, and defendant Ciurcina then handcuffed plaintiff. Id. Plaintiff and defendant Mangone also recall that defendant Ciurcina handcuffed plaintiff. Pl. Dep. at 247; Mangone Dep. at 89.

Defendants Yoo and Viani recall the progression of events after their arrival somewhat differently. They allege that upon arrival, they observed a crowd of people in the parking lot, and saw two individuals later identified as plaintiff and defendant Mangone standing up among them. Yoo Dep. at 11-12; Viani Dep. at 9. They testified that they did not observe any injuries on plaintiff's body, but defendant Yoo stated that he noticed defendant Mangone was bleeding heavily from his forehead. Yoo Dep. at 12-14, 26; Viani Dep. at 23. Defendant Viani undertook crowd control, Viani Dep. at 9-10, while defendant Yoo approached defendant Mangone and asked him what had happened. Yoo Dep. at 14. Defendant Mangone related his version of events to defendant Yoo, namely that he had asked plaintiff and Ms. Lopez what business they had in the parking lot, that plaintiff had responded rudely, and after a brief shouting match, that plaintiff had attacked defendant Mangone by striking him in the face with the car's side-view mirror. Id. at 14-15, 17, 20-24; Mangone Dep. at 84-86. Defendant Mangone also showed defendant Yoo the knife, and told him that plaintiff had threatened him with it. According to defendant Mangone, the knife was open, but defendant Yoo recalls that it was closed. Yoo Dep. at 27-28; Mangone Dep. at 86. Defendant Yoo also recalls that defendant Mangone identified himself to defendant Yoo as a police officer and showed him a shield, and defendant Viani testified that defendant Yoo told him that Mangone had stated he was a police officer. Yoo Dep. at 29-30; Viani Dep. at 14.

After conferring with defendant Viani, defendant Yoo alleges that he approached plaintiff and asked him what had happened. Yoo Dep. at 31. Plaintiff, however, does not recall having any conversation with defendant Yoo prior to his arrest. Pl. Dep. at 246. According to defendant Yoo, plaintiff's story was "pretty similar" to defendant Mangone's version of events, except that plaintiff denied having responded rudely to defendant Mangone. Yoo Dep. at 32, 36-37. Defendant Yoo alleges that plaintiff did not report that defendant Mangone had threatened him or pushed him first, and that he admitted he had struck defendant Mangone with the mirror in self-defense. Id. at 39-40, 42-43. Defendant Yoo further alleges that he showed the knife to plaintiff and asked him where it had come from, and that plaintiff replied that the knife had fallen out of his pocket. Id. at 46-47. According to defendant Yoo, plaintiff did not inform him that Officer Essex had pointed his gun at him or that he had been knocked to the ground, nor did he tell him that defendant Mangone had blocked plaintiff's car with his truck and used racial slurs against him. Id. at 47-48, 64. After conferring with defendant Viani, defendant Yoo informed plaintiff that he was under arrest. Id. at 48. According to defendants Yoo and Viani, defendant Yoo then personally handcuffed plaintiff. Id. at 50-51; Viani Dep. at 16. Defendants Yoo and Viani then placed plaintiff in their police vehicle. Yoo Dep. at 61.

At some point thereafter, defendant Alfano, a New York City Police Sergeant, arrived. Id. at 49-50. Defendant Yoo told defendant Alfano, "sergeant this is what we have. It's an assault . . . Mangone is the victim, Wong was the one who attacked him." Id. at 49. Defendant Yoo also testified that he related plaintiff's and defendant Mangone's stories to defendant Alfano, told him that he and defendant Viani had arrested plaintiff, and that defendant Alfano approved the arrest. Id. at 50. Defendant Alfano further recalls that as part of the arrest verification process, he spoke to both defendant Mangone and plaintiff about their versions of events, Deposition Testimony of Anthony Alfano ("Alfano Dep.") at 17-19, 32-33, but neither defendant Mangone nor plaintiff recall speaking to defendant Alfano on May 16, 2003. Mangone Dep. at 96-97; Pl. Dep. at 251. Defendant Alfano testified that he did not see any blood on plaintiff's body or clothing. Alfano Dep. at 11, 22.

According to plaintiff, defendant Yoo first asked him for his version of events after he was handcuffed and placed in the police car. Pl. Dep. at 244, 248-50. Plaintiff alleges that defendant Yoo came over to him "sarcastically" and laughed at him while he asked plaintiff what had happened. Id. at 249-50. According to plaintiff, after defendant Yoo asked him whether he had tried to stab defendant Mangone, and plaintiff denied having tried to stab him, id. at 250, plaintiff "got the feeling that [defendants Yoo and Viani] didn't really care what was right or wrong at that point so [he] didn't comment anymore." Pl. Dep. II. at 114. Plaintiff alleges that he never related his side of the story to the defendant officers. Id. Defendant Yoo recalls that at this point, plaintiff told him that he, and not defendant Mangone, was the victim, and that defendant Yoo was arresting him improperly. Yoo Dep. at 61.

There is no dispute that medical personnel present on the scene attended to defendant Mangone's facial injuries, but did not treat plaintiff for any injuries. Mangone Dep. at 95-96; Pl. Dep. at 243, 248; Yoo Dep. at 59. Defendant Yoo testified that he asked plaintiff at least twice whether he wanted medical treatment, but plaintiff responded, "No, no, no, I want you to listen to me, listen to what I'm telling you." Yoo Dep. at 60. When defendant Yoo said that plaintiff was "not making any sense," plaintiff allegedly responded, "Fine, forget it." Id. Defendant Alfano recalls that an emergency medical technician ("EMT") approached him, informed him that plaintiff was refusing medical aid, and asked him to try to change plaintiff's mind about accepting treatment and going to the hospital. Alfano Dep. at 11-12. Defendant Alfano alleges that he asked plaintiff if he wanted treatment, and plaintiff refused. Id. at 11. Plaintiff testified that no one asked him if he wanted medical treatment while at the scene, nor did he affirmatively request medical treatment. Pl. Dep. at 248, 252.

Defendant Yoo collected the knife and the side-view mirror and vouchered them as evidence from the scene. Yoo Dep. at 63- 64; see also Declaration of Alan D. Levine ("Levine Decl.") Ex. O (copy of property voucher for the knife and the mirror). There is no dispute, however, that none of the defendant officers vouchered the pipe, the level, or the broom, nor did they examine plaintiff's car or defendant Mangone's truck. Yoo Dep. at 25-26, 32-35, 63-64; Viani Dep. at 25, 27; Alfano Dep. at 21, 23. Ms. Lopez approached defendant Yoo, identified herself as plaintiff's girlfriend, and said that she was in plaintiff's car during the fight between plaintiff and defendant Mangone. Yoo Dep. at 53-54. Ms. Lopez recalls informing both defendants Yoo and Viani that she wanted to speak with them and being told to "wait at the car." Lopez Dep. at 107, 117-18. However, none of the defendant officers ever asked Ms. Lopez for her version of events. Yoo Dep. at 53-55; Lopez Dep. at 117. Defendant Ciurcina left the scene without speaking to any of the defendant officers. Ciurcina Dep. at 30, 52. Officer Essex states that he approached defendant Alfano at least twice, identified himself as a police officer, and told him that he wanted to describe what had occurred, but that defendant Alfano "waived [him] off, indicating that he did not want to speak to [him]." Essex Aff. ¶ 2.

Defendants Yoo and Viani then drove plaintiff in their police car to the 120th Precinct for arrest processing. Yoo Dep. at 66. While defendant Viani parked the car, defendant Yoo escorted plaintiff to a small holding cell. Id. at 70; Pl. Dep. at 253. In the holding cell, about 20 minutes after arriving at the precinct, plaintiff informed either defendant Yoo or another non-party officer that he was not feeling well and that his head hurt. Yoo Dep. at 71; Pl. Dep. at 256-58. According to plaintiff, he was "bleeding profusely nonstop" at this time and spitting up blood. Pl. Dep. at 253, 323-24. Plaintiff requested to be taken to the hospital, Yoo Dep. at 72-73; Pl. Dep. at 256, and defendant Viani escorted plaintiff to St. Vincent's hospital about 20 minutes later. Pl. Dep. at 259-30; Viani Dep. at 34-37.

At the hospital, plaintiff was diagnosed with a right mandible fracture and facial abrasions. See Levine Decl. Ex. Q (copy of St. Vincent's medical report dated May 16, 2003). He was treated and eventually returned to the precinct and placed in a general holding cell for the night. Yoo Dep. at 77-78. There is no dispute that plaintiff's injuries eventually required multiple hospital visits and at least two surgeries to correct the damage to plaintiff's jaw. See Levine Decl. Ex. R (copies of St. Vincent's "Operative Reports" corresponding to surgeries performed on May 22, 2003 and September 11, 2003, and detailing plaintiff's relevant medical history).

Prosecution of Plaintiff

Later in the evening of May 16, 2003, defendant Yoo met with an Assistant District Attorney ("ADA") at the criminal court on Staten Island. Yoo Dep. at 79. He brought plaintiff's arrest paperwork with him, informed the ADA of his version of the events of that afternoon, and signed a sworn criminal complaint against plaintiff. Id. at 80. The complaint stated, in relevant part, as follows:

Deponent states that he is informed by James Mangone, that the defendant with intent to cause physical injury the informant [sic] did cause such injury to the deponent [sic] by means of a dangerous instrument, to wit: a side view mirror, in that the defendant did hit the informant in the face with said dangerous instrument, causing the informant to suffer physical injuries including but not limited to lacerations to the face and nose, as well as substantial pain, annoyance, and alarm.

Levine Decl. Ex. N (copy of criminal complaint dated May 16, 2003). Defendant Yoo was never called to appear and did not appear in any court proceedings against plaintiff. Yoo Dep. at 80.

The next day, plaintiff was arraigned and charged with assault, criminal possession of a weapon, and harassment. Pl. Dep. at 362; Levine Decl. Ex. N. Plaintiff pleaded not guilty and was released on his own recognizance, but was compelled to appear between eight and ten times in court over the next year and a half in connection with the charges. Pl. Dep. II at 102-04. The charges were eventually dismissed for unknown reasons. Id. at 104. A report issued by the New York City Police Department's ("NYPD") Internal Affairs Bureau ("IAB") on June 22, 2006, states that "the criminal case against [plaintiff] was dismissed due to [defendant] Mangone's lack of cooperation with the SI DA's office." Declaration of Jeffrey S. Dantowitz ("Dantowitz Decl.") Ex. A (copy of IAB findings report dated June 22, 2006). Defendant Ciurcina also testified that defendant Mangone told him the District Attorney's Office had dropped the charges against plaintiff because defendant Mangone had failed to appear in court. Ciurcina Dep. at 37-38. According to defendant Ciurcina, defendant Mangone failed to appear in court because the District Attorney's Office mailed his subpoenas to the wrong address. Id. at 38. In contrast, defendant Mangone testified that he did once travel to criminal court in relation to plaintiff's case, where, after waiting "all morning," an ADA told him that plaintiff "had copped a plea to disorderly conduct and that the case was over." Mangone Dep. at 100.

Procedural History and Defendant Yoo and Viani's Requests for Representation

On August 1, 2004, and September 1, 2004, the Civilian Complaint Review Board ("CCRB") forwarded complaints filed by plaintiff's mother and Ms. Lopez, respectively, concerning plaintiff's arrest to the IAB. Dantowitz Decl. Ex. A. In October of 2004, the case was reviewed by the IAB and closed as unsubstantiated. Id.

On October 25, 2004, plaintiff commenced this lawsuit against defendants Mangone, Yoo, and other unidentified defendants in connection with the events of May 16, 2003. On February 4, 2005, an Assistant Corporation Counsel of the New York City Office of Corporation Counsel ("Corporation Counsel") filed a notice of appearance on behalf of defendant Yoo. Also in February of 2005, the IAB again reviewed the CCRB complaints brought by plaintiff's mother and girlfriend, and again closed the case as unsubstantiated. Id.

On April 21, 2005, the IAB commenced a third investigation into the May 16, 2003 incident, during which all parties to this lawsuit except defendant Mangone, as well as Ms. Lopez, Officer Essex, and two EMTs were interviewed. Dantowitz Decl. ¶ 3; Id. Ex. A. On June 22, 2006, the IAB issued its investigative findings regarding the incident. Id. ¶ 4, Ex. A. It found, among other things, that defendants Yoo and Viani had violated NYPD rules and regulations by failing to provide medical assistance to plaintiff at the scene of the incident.

By letter dated January 2, 2007, Corporation Counsel notified defendant Yoo that it could no longer represent him because it was unable to make the requisite findings under New York General Municipal Law § 50-k(2).*fn3 Id. Ex. B (copy of letter). Among the individual defendants that had been named by that time, Corporation Counsel had only filed a notice of appearance on behalf of defendant Yoo. On January 29, 2007, Magistrate Judge Gold granted Corporation Counsel's request to withdraw as attorney for defendant Yoo. On June 1, 2007, defendants Yoo and Viani filed a third-party complaint against the City alleging that they were denied their right to representation and seeking indemnification.

The present motions for summary judgment followed on March 16, 2009.

DISCUSSION

I. Standard for Summary Judgment

A court must grant a motion for summary judgment if the movant shows 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). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. ...


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