The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge:
MEMORANDUM AND ORDER PARTIALLY MODIFYING AND ADOPTING REPORT AND RECOMMENDATION
This case arises out of an incident that occurred on May 8, 2005, when defendant Shamik Walton ("Walton"), a Lieutenant with the New York City Police Department ("NYPD") Internal Affiairs Bureau, shot and killed his tenant, Byron Hearst ("Hearst"), during a dispute that arose when Walton came to collect the rent while he was off duty. Plaintiff Sheron Hearst ("plaintiff"), as executor of Hearst's estate, commenced this action against the City of New York ("City"), the NYPD, and Walton, seeking relief pursuant to 42 U.S.C. § 1983 and state tort law. (See ECF No. 1, Complaint filed 11/9/2005.)
On May 13, 2011, the City filed a motion for summary judgment on behalf of itself and the NYPD. (ECF No. 44, Notice of Motion for Summary Judgment, filed 5/13/2011; ECF No. 45, [City and NYPD] Defendants' Memorandum of Law in Support of their Motion for Summary Judgment, dated 12/17/2010.) Plaintiff and Walton both opposed the City's motion. (ECF No. 48, Plaintiff's Memorandum of Law in Opposition to Defendant The City of New York's Motion for Summary Judgment, dated 3/17/2011; ECF No. 50, [Defendant Walton's] Memorandum of Law in Opposition to Defendant City's Motion for Summary Judgment, dated 3/18/2011.) On October 12, 2011, this court referred the City's motion to Magistrate Judge Robert M. Levy for a Report and Recommendation. (Order Referring Motion dated 10/12/2011.)
After hearing oral argument on January 5, 2012, Magistrate Judge Levy issued a Report and Recommendation on February 21, 2012, recommending that the City's motion for summary judgment be granted in part and denied in part. (See ECF No. 54, Report & Recommendation, dated 2/21/2012 ("R&R").) Specifically, Magistrate Judge Levy recommended that the court:
(1) dismiss plaintiff's claims against the NYPD because it is not a suable entity (id. at 1 n.1);
(2) dismiss plaintiff's claims against the City pursuant to 42 U.S.C. § 1983 (id. at 4-6);
(3) dismiss plaintiff's claims against the City and Walton for negligence (id. at 7 n.5);
(4) dismiss plaintiff's claims against the City for negligent hiring and retention (id. at 5 n.4);
(5) deny the City's motion for summary judgment on plaintiff's state law intentional tort claims against the City pursuant to 28 U.S.C. § 1367(c) (id. at 6-7); and
(6) deny the City's motion for summary judgment on plaintiff's state law intentional tort claims against the City for respondeat superior liability (id. at 12-14).
Now before the court are the City's timely objections to the Report and Recommendation and plaintiff's responses to the City's objections.*fn1 (See ECF No. 56, Defendants' Memorandum of Law in Support of their Objections to the Report and Recommendations of the Honorable Robert M. Levy Pursuant to Federal Rule of Civil Procedure 72, dated 3/8/2012 ("City Obj." or "Objections"); ECF No. 57, Plaintiff's Memorandum of Law in Support of the Findings to the Report and Recommendations, filed 3/22/2012.) For the reasons set forth below, the Objections are overruled and the Report and Recommendation is adopted.
I.Review of Report and Recommendation
To the extent that a party makes specific and timely
written objections to a magistrate judge's findings and recommendations, the district court must review de novo "those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (citation and internal quotation marks omitted); see also Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition.") (internal quotation marks omitted). Upon review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
Familiarity with the underlying facts as set forth in the Report and Recommendation is presumed. (See ECF No. 54, R&R at 9-12.) Except as noted herein, the parties do not dispute the Report and Recommendation's recitation of the undisputed facts, except that the City objects to the consideration of items not in the record. Accordingly, the court relies upon the underlying facts as set forth in the Report and Recommendation with the exceptions noted.
As an initial matter, no party has objected to the first through fifth recommendations in Magistrate Judge Levy's Report and Recommendation. The court has reviewed those portions of Magistrate Judge Levy's Report and Recommendation and finds no clear error. Accordingly, (1) plaintiff's claims against the NYPD are dismissed; (2) plaintiff's claims against the City pursuant to 42 U.S.C. § 1983 are dismissed; (3) plaintiff's claims against the City and Walton for negligence are dismissed; (4) plaintiff's claims against the City for negligent hiring and retention are dismissed; and (5) the City's motion for summary judgment on plaintiff's state law intentional tort claims against it pursuant to 28 U.S.C. § 1367(c) is denied.
In its Objections to the Report and Recommendation, the City challenges Magistrate Judge Levy's conclusion that there are disputed issues of material fact as to whether Walton was acting within the scope of his employment when he shot Hearst, and thus whether the City can be held liable under the doctrine of respondeat superior for Walton's conduct. The City asserts that the undisputed facts in the record demonstrate that Walton was acting solely in his personal capacity when he shot Hearst, and that any purported facts to the contrary relied upon in the Report and Recommendation are not supported by admissible evidence. (ECF No. 56, City Obj. at 4-9.)
The City's Objections focus primarily on three purported facts relied upon by the Report and Recommendation in finding a dispute regarding whether Walton was acting within the scope of his employment: (1) the testimony of Thomas Mason ("Mason"), the Deputy Chief of the NYPD Internal Affairs Bureau, that he considered the shooting "a police incident" and that "he believed Walton had been attempting to place [Hearst] into custody for assaulting him" (see ECF No. 48-3, Declaration of Richard M. Levy in Opposition to the Motion by Defendant the City of New York for Summary Judgment, dated 3/17/2011 ("Levy Decl.") Ex. B, Deposition Transcript of Thomas Mason, dated 3/24/2010 ("Mason Dep.") at 79; ECF No. 56, City Obj. at 9, 11-15); (2) Walton's application for and receipt of overtime pay for the period during which the shooting occurred (see ECF No. 48-3, Levy Decl. Ex. A, Overtime Pay Reports; ECF No. 56, City Obj. at 9, 15-16); and (3) the Corporation Counsel's decision not to "represent or indemnify [defendant Walton] because the shooting occurred during a purely personal dispute" (see ECF No. 56, City Obj. at 9, 17). In light of the City's timely Objections to the Report and Recommendation, the court has ...