The opinion of the court was delivered by: Denise Cote, District Judge
The defendant The City of New York (the "City") has moved for summary judgment. For the following reasons, the motion is granted in part. The Court declines to exercise supplemental jurisdiction over the remaining state law claims.
The following facts are undisputed, unless otherwise noted. On March 22, 2008, Police Officer Jocelyn Peralta ("Peralta") received a radio transmission indicating that three or four males were selling drugs in the vicinity of 144th Street and Broadway in Manhattan. Peralta and her partner arrived at the scene, handcuffed four males who matched the description she had been given, and as a crowd gathered called for additional police assistance. Plaintiff Nitzaly Fabal ("Fabal") was talking on the sidewalk some distance away, near 145th Street and Broadway, with another woman as Fabal waited to get some money from the father of her children. At the time, Fabal was seven and a half weeks pregnant with her fourth child, who is referred to herein as the Son.
Fabal did not move on when Peralta requested her to do so. Fabal explains that she didn't move because she was engaged in conversation. Fabal asserts that Peralta then pushed her into a parking meter and punched her in the stomach as Sgt. Juan Duran ("Duran") held her arms behind her back. Fabal and members of the crowd told the officers that Fabal was pregnant. Fabal was arrested at approximately 2:50 pm. on charges of obstructing governmental administration, resisting arrest, menancing, and harassment.
Fabal was taken to the 30th precinct, where officials called for an ambulance to take her to Harlem Hospital. The medical records reflect inter alia that Fabal had mild bilateral low abdominal tenderness. After being released that night from the hospital, Fabal was taken to another precinct, and then Central Booking, and released shortly thereafter. The day after her release from custody, Fabal went to Columbia Presbyterian Hospital to be examined.
During a bench trial on February 23 and 24, 2009, Fabal was tried on the charges of attempted assault, menacing, and aggravated harassment. She was acquitted on each charge. During the trial, Peralta, Duran, and Fabal testified, among others.
Fabal's Notice of Claim was served on the City on May 12, 2009. On June 18, 2009, Fabal filed this lawsuit on behalf of herself and her infant Son. She named as defendants the City, the New York City Police Department, Hon. Robert A. Morgenthau ("Morgenthau"), the District Attorney of New York County, Peralta, Duran, and Police Officer Maximo Diaz ("Diaz"). The complaint asserts claims for false arrest, use of excessive force, and malicious prosecution, in violation of Fabal's constitutional rights pursuant to 42 U.S.C. § 1983. It also asserts claims under state law for intentional infliction of emotional distress, prima facie tort, assault, false arrest and imprisonment, and negligence. The plaintiffs sought damages of $1,000,000 from each defendant.
The plaintiffs advised the City on June 14, 2010, that the claims brought on behalf of Fabal's Son were being withdrawn without prejudice.*fn1 Discovery in this action ended on September 3, 2010. Fabal did not depose the individual officers or serve discovery requests regarding them during the discovery period.
After several extensions, the City's motion for summary judgment was fully submitted on July 8, 2011. In opposition to the summary judgment motion, Fabal has withdrawn her claims against the District Attorney.*fn2 She has also submitted an affidavit that describes misconduct by Peralta and Duran. Fabal's affidavit makes no assertion that the individual defendant Officer Diaz engaged in any misconduct.
The City has moved to dismiss the claims against the three remaining individual defendants -- Peralta, Diaz and Duran --for failure to serve them and for summary judgment on all of the claims. The motion to dismiss will be addressed first.
1. Failure to Serve The sole remaining individual defendants Peralta, Diaz and Duran have moved to dismiss the claims against them with prejudice for the failure to serve them within the 120 days required by Fed. R. Civ. P. 4(m).*fn3 Under Rule 4(m), [i]f a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant . . . . But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). "Good cause" is not defined, but attorney neglect or error does not meet this standard. See McGregor v. United States, 933 F.2d 156, 160 (2d Cir. 1991) (construing Rule 4(j), Fed. R. Civ. P., before its amendment in 1993). While the district court may grant an extension of the service period absent a showing of good cause, the plaintiff must "ordinarily advance some colorable excuse for the neglect," including a demonstration that an effort was made to effect service and that a request for an ...