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Puckowitz v. City of New York

September 17, 2010

STEPHEN PUCKOWITZ, PLAINTIFF,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY; NEW YORK CITY POLICE OFFICERS RODRIGUEZ (SHIELD NO. 10703), GORE (SHIELD NO. 12464), DORSETT (SHIELD NO. UNKNOWN) AND SERGEANT "JOHN DOE" (SHIELD NO. UNKNOWN); SINGH MANJEET; AND MCGUINESS MANAGEMENT, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

ECF

MEMORANDUM OPINION & ORDER

Plaintiff Stephen Puckowitz brings this action against Defendants the City of New York, New York City Police Officers Rodriguez, Gore and Dorsett, Singh Manjeet and McGuiness Management asserting claims arising from his April 3, 2008 arrest.

Defendants the City of New York and Officers Rodriguez, Gore and Dorsett move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).*fn1 For the reasons set forth below, the motion to dismiss will be GRANTED.

BACKGROUND

On the evening of April 3, 2008, Puckowitz was traveling in a taxi driven by Singh Manjeet and "owned and/or operated" by McGuiness Management. (Cmplt. ¶¶ 13-14, 18) At 6:56 p.m., the taxi arrived at the office of an Upper West Side psychologist. (Cmplt. ¶¶ 12- 13) Puckowitz alleges that he "paid the cab fare using his American Express card." (Cmplt. ¶ 13) American Express approved the 6:56 p.m. transaction under approval code 503473. (Id.) The Complaint avers, upon information and belief, that Manjeet "falsely reported" to the New York City Police Department that Puckowitz had not paid his fare. (Cmplt. ¶ 14) At 7:13 p.m., Officers Rodriguez, Gore and Dorsett "forcibly took [Puckowitz] from the psychologist's office, handcuffed him, placed him under arrest, shoved him repeatedly, and then dragged him to their squad car." (Cmplt. ¶ 15) The officers "refused to listen" to Puckowitz's claims that he had paid the fare in full, and Officer Rodriguez denied Puckowitz's request that he contact American Express to confirm the fare had been paid. (Id.) The officers "similarly refused [Puckowitz's] offer to pay the cab [fare] a second time" (id.), and ignored the psychologist's assertions that Puckowitz had paid the fare. (Cmplt. ¶ 16) The Complaint alleges that Officer Rodriguez "told the psychologist 'shut up' using curses and expletives, and threatened to arrest her as well." (Id.)

Puckowitz remained in handcuffs for more than ninety minutes and was taken to the New York City Police Department's 20th Precinct, where he was placed in a cell. (Id.) He was released between 1:30 and 2:00 a.m. on April 4, 2008, and given a desk appearance ticket. (Id.)

On April 29, 2008, Officer Rodriguez signed a criminal complaint against Puckowitz, alleging that he had violated New York Penal Law § 165.13, which governs "Theft of Services." (Cmplt. ¶17) The criminal complaint indicates that the charge is based on Manjeet's statement that Puckowitz had "refused to pay" the fare. (Cmplt. ¶ 18) Puckowitz claims that he was "maliciously prosecuted" and was "forced to attend court, retain an attorney, [and] lose income by attending the court proceeding." (Cmplt. ¶ 19) The criminal case against Puckowitz was "dismissed and sealed" on May 5, 2008. (Id.)

Puckowitz filed this action on July 2, 2009. Puckowitz brings claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution and excessive force. (Cmplt. ¶¶ 32-34, 38-43, 47-49) Puckowitz also brings claims under New York state law for negligence (Cmplt. ¶¶ 41-43), and assault and battery. (Cmplt. ¶¶ 50-52) Finally, Puckowitz asserts claims that the City of New York is liable under both federal law and the doctrine of respondeat superior. (Cmplt. ¶¶ 44-46, 53-58)

DISCUSSION

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In considering a motion to dismiss . . . the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)). "Dismissal for failure to state a claim is proper where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)).

"When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' . . . complaint, . . . to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

I. PUCKOWITZ FAILS TO STATE A CLAIM UNDER 42 U.S.C. § 1983

Puckowitz's federal claims all seek damages under 42 U.S.C. ยง 1983, which provides "'a method for vindicating federal rights elsewhere conferred,' including under the Constitution." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. ...


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