The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Nicolas P. Hart ("Plaintiff") commenced this action asserting claims pursuant to 42 U.S.C. § 1983 and New York state law. Defendants The City of Binghamton ("the City") and Patrolman Robert Charpinsky ("Charpinsky") have moved for partial summary judgment seeking to dismiss certain claims. Plaintiff has opposed the motion and Defendants have filed reply papers. The Court will decide the motion based upon the parties' submissions, all of which have been considered.
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). That is, "[s]ummary judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)).
Plaintiff's claims in this action arise from his September 13, 2009 arrest. On this date, at approximately 8:30 or 9:00 PM, an argument occurred in the driveway between 3 and 5 Gaylord Street in the City of Binghamton. The argument involved Patricia Hart, Nicole Tiffany, and Nicole Tiffany's mother. Patricia Hart is Plaintiff's sister. Plaintiff overheard the argument from 5 Gaylord Street and went outside to investigate. He heard the two women threatening his sister so he became involved in the argument. Nicole Tiffany called the Broome County 911 call center and reported a domestic dispute. She also told the 911 operator that Plaintiff had a knife. Plaintiff alleges that when his sister told him that Tiffany reported that he had a knife, he ran into 5 Gaylord Street, threw the knife in his room, and then ran back outside and continued arguing.
Charpinsky, who was on duty at the time as a Patrolman with the City of Binghamton Police Department, was dispatched to this call. Upon his arrival, Charpinsky parked his police vehicle across the street from the driveway between 3 and 5 Gaylord Street and exited the vehicle. He observed a number of individuals arguing in this driveway. One of the women in the driveway yelled that Plaintiff had a knife.*fn1 Plaintiff asserts that he began walking toward Officer Charpinsky stating that he no longer had the knife on his person. Charpinsky instructed Plaintiff and Patricia Hart to retreat to the front of 5 Gaylord Street. They complied. Charpinsky told Patricia Hart to leave the scene and enter into her home at 5 Gaylord Street, which she did. Charpinsky then instructed Plaintiff to put his hands above his head and against the porch at 5 Gaylord Street, which he did. Plaintiff alleges that Officer Charpinsky then handcuffed him, began demanding Plaintiff to tell him where the knife was, slammed Plaintiff into the porch a number of times fracturing a bone in his shoulder, and then threw Plaintiff to the ground fracturing a bone in his left knee.*fn2
On July 28, 2010, Plaintiff served a Notice of Claim on the City. The Notice of Claim described the events of September 13, 2009, and alleged that the City had been negligent and/or grossly negligent by "failing to properly train and supervise its officers in the use of reasonable force in citizen confrontations," and that the City was also liable under the theory of "respondeat superior" for the actions of Charpinsky. Charpinsky was not named as a respondent in the caption of the Notice of Claim, but his alleged acts were described in detail in the body of the Notice of Claim. See Notice of Claim, ¶¶ 6-7.
Plaintiff commenced this action September 2, 2010 asserting claims
pursuant to 42 U.S.C. § 1983 and New York State law.*fn3
Defendants have moved for partial summary judgment seeking to
dismiss some of the claims, discussed more fully below.
a. State Law Claims Against Robert Charpinsky
Defendants assert that Plaintiff's state law claims against Charpinsky must be dismissed because Charpinsky was not named as a respondent in Plaintiff's New York General Municipal Law Section 50-e Notice of Claim. "The Court recognizes that it is well settled that 'General Municipal Law § 50--e makes unauthorized an action against individuals who have not been named in a notice of claim.'" Hodge v. Vill. of Southampton, 09-CV-2606 JFB WDW, 2012 WL 174838, at *18 (E.D.N.Y. Jan. 20, 2012) (quoting DC v. Valley Cent. Sch. Dist., 2011 WL 3480389, at *1 (S.D.N.Y. June 29, 2011)(internal quotation marks and citations omitted)(collecting cases)). However,
"[t]he purpose of the statutory notice of claim requirement is to afford the public corporation 'an adequate opportunity to investigate the circumstances surrounding [a claim] and to explore the merits of the claim while information is still readily available.' " Mojica v. N.Y.C. Tr. Auth., 117 A.D.2d 722, 723, 498 N.Y.S.2d 448 (N.Y. App. Div.1986) (quoting Caselli v. City of New York, 105 A.D.2d 251, 252, 483 N.Y.S.2d 401 (N.Y. App. Div.1984)). The test of the notice's sufficiency is whether it includes information sufficient to enable the city to investigate the claim. O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981). In determining whether a claimant has complied with the statutory requirements for notice of claims, "the court should focus on the purpose served by the notice of claim and whether, based on the ...