The opinion of the court was delivered by: J. Paul Oetken, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Sachs ("Plaintiff") filed this lawsuit asserting various claims arising out of an incident that occurred in March 2009 at the bar of Wollensky's Grill in Manhattan. Plaintiff brings suit against the City of New York, Police Officer William Cantwell, Police Officer Joseph Musa, Police Officer Alexandra Paquette, and John Doe Police Officers #1-3 (collectively, the "City Defendants"); and against Patrick Ford, Aaron Sagendorf, John Doe #4 (referred to by the parties as "Mike"), Smith & Wollensky Operating Corporation ("S&W Operating"), and Fourth Wall Restaurants, LLC ("Fourth Wall") (collectively, the "Private Defendants").
Plaintiff asserts the following claims against the City Defendants: constitutional claims under 28 U.S.C. § 1983 against all of the City Defendants for false arrest, malicious prosecution, and excessive use of force in violation of her constitutional rights; state law assault and battery claims against Officer Musa for using excessive force during Plaintiff's arrest; state law false arrest claims against Officer Cantwell, Officer Musa, and John Doe Officers #1-3; state law malicious prosecution claims against all of the Defendant Police Officers; and a Monell claim against the City of New York.
Plaintiff asserts the following claims against the Private Defendants: assault and battery claims against Defendants Sagendorf, John Doe #4 ("Mike"), S&W Operating, and Fourth Wall; malicious prosecution claims against all of the Private Defendants; and negligent retention claims against S&W Operating and Fourth Wall.
The City Defendants and the Private Defendants have each collectively moved for summary judgment on all claims against them. (Dkt. Nos. 88, 94.)
Plaintiff has moved for sanctions based on the alleged spoliation of evidence on the part of the Private Defendants and City Defendants Officers Cantwell, Musa, and Paquette. (Dkt. No. 77.) Both sets of defendants have opposed her motion.
For the reasons set forth below, the Court denies Plaintiff's motion for spoliation of evidence sanctions. The Court denies summary judgment on Plaintiff's assault and battery and excessive use of force claims against City Defendant Officer Musa (both under state law and under § 1983) and Plaintiff's state law assault and battery claims against Private Defendants Sagendorf, S&W Operating, and Fourth Wall. The Court dismisses the claims against John Doe Officers #1-3 and against John Doe #4. The Court grants summary judgment to the defendants on all other claims.
The case before the Court stems from an altercation that occurred on the night of March 2-3, 2009 at Wollensky's Grill ("Wollensky's"), located at East 49th Street and Third Avenue, New York, New York. (Complaint, Dkt. No. 1, ("Compl.") at 1.) That evening, Plaintiff Jennifer Sachs was a patron of the bar at Wollensky's. (Private Defendant's Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, Dkt. No. 100, ("Private Defs. 56.1 Stmt.") ¶
4.) Defendant Smith & Wollensky Operating Corporation ("S&W Operating") owns Wollensky's and Defendant Fourth Wall Restaurants, LLC ("Fourth Wall") manages and employs those who work there. Defendant Aaron Sagendorf was employed by Fourth Wall as a manager at Wollensky's and Defendant Patrick Ford was employed by Fourth Wall as a bartender at Wollensky's. (Id. at ¶ 2-3.)
The exact relationship among Wollensky's, S&W Operating, Fourth Wall, and the Private Defendant employees is unclear from the record. The Private Defendants contend that S&W Operating "does not employ or supervise" Sagendorf or Ford, and that they are employed only by Fourth Wall. (Id. ¶ 1.) However, there is no dispute that Fourth Wall is S&W Operating's agent for the purposes of running Wollensky's.
1. The Dispute Between Plaintiff and Defendant Ford
Sachs arrived at the bar at about 12:30 a.m. on March 3, 2009. While at the bar, Ford served Sachs one or two glasses of wine. Sachs asserts that she had nothing else to drink that night besides the two glasses of wine. (Declaration of Steve Stavridis in Support of Motion for Summary Judgment ("Stavridis Dec."), Ex. K, Deposition of Jennifer Sachs, Dkt. No. 92, ("Sachs Dep.") at 160.) Sachs claims that the altercation began when Ford propositioned her, and she refused. (Compl. ¶¶ 24-26.) Ford asserts that the altercation began when he cut her off from further drinking. (Affidavit of John Mulcahy in Support of Motion for Summary Judgment, Dkt. No. 95 ("Mulcahy Aff."), Ex. F ("Ford Dep.") at 26.) Neither side disputes that just before 1:30 a.m., Plaintiff angrily threw a glass water pitcher at Ford, which subsequently broke into pieces behind the bar.*fn2 (City Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, Dkt. No. 91, ("City Defs. 56.1 Stmt.") ¶¶ 10-11.) Ford contends that the pitcher hit him in the side of the head and bounced off, but Plaintiff disputes that the pitcher ever hit Ford. (Ford Dep. at 26, 29; Plaintiff's Rule 56.1 Statement in Opposition to City of New York et al. Motion to Dismiss, Dkt. No. 112, ("Pl. 56.1 Resp. - City Defs.") ¶¶ 10-11.)
The parties disagree sharply as to what happened next.
2. The Dispute Between Plaintiff and Defendant Sagendorf
Plaintiff alleges that after throwing the pitcher, she walked to the door of Wollensky's and opened it. At that point, Sagendorf and a patron named "Mike"*fn3 grabbed her and pulled her back inside the vestibule of the restaurant. She claims that they then pushed, pulled, and scratched her and slammed down her hand when she used her cell phone to dial 911. Plaintiff successfully dialed 911 shortly after 1:30 a.m. Plaintiff claims that at that point either Sagendorf or Mike knocked Plaintiff on the head, throwing her to the ground, where she blacked out. At around 1:34 a.m., Sachs alleges that she lay on the ground in the vestibule while Mike punched her hand and shouted "you fucking Jew" at her. (Compl. ¶ 32.)
b. The Private Defendants' Version
The Private Defendants present a very different description of the course of events. Sagendorf asserts that after hearing the pitcher break, he turned to find Plaintiff raising her wine glass as if to throw it at Ford. (Stavridis Dec., Ex. M ("Sagendorf Dep."), at 33.) Sagendorf approached Plaintiff, asked her to leave, and held her by the shoulder to escort her to the vestibule exit. Sagendorf asserts that, once in the vestibule, Plaintiff began assaulting him by striking him in the face with her open hand and kicking him in the groin. (Sagendorf Dep. at 34-38.) To avoid being kicked, Sagendorf contends that he grabbed Plaintiff's kicking leg, at which time Plaintiff fell to the ground. Sagendorf then used his knee to pin her to the ground. (Id. at 38-39.)
Police recordings show that at approximately 1:32 a.m., while on the ground being pinned down by Sagendorf, Plaintiff called 911. (Sagendorf Dep. at 39; City Defs. 56.1 Stmt. ¶ 5.) Sagendorf directed Ford also to call 911. According to the police records, Ford's call came in at 1:33 a.m.*fn4 (City Defs. 56.1 Stmt. ¶ 5.) Sagendorf asserts that after the call, he let Plaintiff stand up, but that when she tried to kick him again, he again caught her leg, causing her to fall. He pinned her down the final time by sitting on her legs. (Sagendorf Dep. at 40.) At that time, Sagendorf says that a male patron entered the vestibule and helped him subdue Plaintiff by holding her wrists. (Id. at 47-48, 62-63.) Sagendorf admits that, in the course of restraining Plaintiff, he heard the patron call Sachs "a fucking Jew" more than once. Sagendorf states that he told the patron to leave at that point. (Id. at 92-94.) Sagendorf restrained Plaintiff until the police arrived.
3. The Dispute Between Plaintiff and the Defendant Police Officers
The parties agree that as a result of the 911 calls, at around 1:34 a.m., Officers Cantwell, Paquette and Musa received a radio dispatch reporting a dispute in progress at Wollensky's. (Stavridis Dec., Ex. N, Declaration of William Cantwell ("Cantwell Dec."), ¶ 4; City Defs. 56.1 Stmt. ¶ 5.) Officer Cantwell arrived a minute or two before Officers Musa and Paquette, who arrived on the scene at approximately 1:35 a.m. (City Defs. 56.1 Stmt. ¶¶ 5, 7, 8; Stavridis Dec., Ex. N, Declaration of Alexandra Paquette ("Paquette Dec."), ¶ 5.) Plaintiff's recollection of her interactions with the officers sharply differs from the account of the City Defendants.
Plaintiff alleges that around 1:35 a.m., Officer Cantwell and three other John Doe officers arrived and witnessed Mike beating her and calling her "a fucking Jew." (Compl. ¶ 33.) Plaintiff contends that these officers did not intervene or speak to her at all. (Id.) When officers Musa and Paquette arrived a minute later, Plaintiff contends that they saw Mike and Sagendorf still on top of her. (Sachs Dep. at 147.) Plaintiff claims that upon Officer Cantwell's order to "book her," Officer Musa handcuffed Plaintiff's already-injured hands and wrists. (Compl. ¶¶ 34-36.) Plaintiff alleges that Musa then took her outside Wollensky's, where she asked why she was being arrested. Musa told her to "shut up" and kicked the back of her knee to the ground, breaking her knee, and kicked her head. Plaintiff claims that she then blacked out again. (Compl. ¶¶ 37-38; Sachs Dep. at 153-157.) She claims that when she regained consciousness at around 2:00 a.m., she was being taken into the Bellevue Hospital emergency room. (Compl. ¶ 40; Sachs Dep. at 158-160.)
b. The Defendant Police Officers' Version
In contrast, Officer Cantwell contends that when he arrived, he saw Plaintiff on the ground being restrained by Sagendorf. It is undisputed that Sagendorf informed Cantwell that Plaintiff became rowdy after being cut off by the bartender and that he was trying to restrain her because she had become violent. (Sagendorf Dep. at 86; Cantwell Dec. ¶ 5.) Officers Musa and Paquette arrived moments later. Cantwell spent about ten minutes interviewing Ford, Sagendorf, and at least three patrons about the incident, and transferred his notes to Paquette. (Cantwell Dec. ¶ 7.) Cantwell's interviews with the patrons substantiated the descriptions of the events given by Ford and Sagendorf. (Paquette Dec. ¶ 8.) Cantwell then left the premises.
Officers Musa and Paquette both spoke with Plaintiff and determined based on her belligerent demeanor and slurred speech that she was intoxicated. (Paquette Dec. ¶ 9; Stavridis Dec. Ex. N, Declaration of Joseph Musa ("Musa Dec."), ¶ 6.) The officers spoke with Ford and witnessed the broken glass from the pitcher. They also spoke with Sagendorf and observed a red mark on his face, which he stated was caused by Plaintiff's striking him. (Paquette Dec. ¶¶ 6-7; Musa Dec. ¶ 5.) Plaintiff told the officers that the staff and patrons had attacked her and called her a Jew. (Musa Dec. ¶ 6; Paquette Dec. ¶ 9.) The officers state that they observed no signs of assault on Plaintiff except that she complained that her left hand hurt, and that they could not ascertain a reason that the staff and patrons would have assaulted her. (Id.)
At around 1:55 a.m., Defendants Musa and Paquette made the decision to arrest Plaintiff. (City Defs. 56.1 Stmt. ¶ 19.) They placed her in handcuffs and escorted her to the police vehicle. Officers Musa and Paquette contend that, along the way, Plaintiff began screaming and kicking, making it necessary for each officer to restrain her by holding her arms on either side as they walked. (Paquette Dec. ¶ 11; Musa Dec. ¶ 8.) Officers Musa and Paquette assert that Plaintiff did not complain of tight handcuffs at any time. (Musa Dec. ¶ 8.) After placing Plaintiff in the vehicle, the two officers assert that Plaintiff attempted to kick out the rear windows. (Musa Dec. ¶ 9; Paquette Dec. ¶ 12.) Plaintiff was then transported to the police precinct for processing. (Paquette Dec. ¶ 12.) When Plaintiff complained of pain in her left fingers, Paquette requested emergency medical services ("EMS") personnel to come to the precinct. EMS then transported Plaintiff to Bellevue Hospital at about 2:34 a.m. (Paquette Dec. ¶¶ 13-14.) After being dischargd from Bellevue Hospital at 4:30 a.m., Sachs was taken back to the precinct for arrest processing. (Paquette Dec. ¶ 15.)
It is undisputed that on the night of the incident, Sachs was transported to Bellevue Hospital, where she was examined and treated for swelling and abrasions on her left hand. (Compl. ¶ 40; Sachs Dep. at 158-160; Paquette Dec. ¶¶ 13-14; Stavridis Dec. Ex. H.)
The day after the incident, March 4, 2009, Sachs went to Lenox Hill Hospital, where she was treated for a fractured patella. (Stavridis Dec., Ex. I.) However, the City Defendants' purported medical expert examined Plaintiff's medical record and formed a different medical opinion. Defendants' expert found that Sachs exhibited no signs of trauma to her kneecap and that the x-rays in fact reflect that the problems with her patella were congenital. (See Stavridis Dec., Ex. J, Expert Report by Dr. Ramesh Gidumal.)
On the same day as her arrest, March 3, 2009, Jennifer Sachs was arraigned in New York City Criminal Court and charged with assault in the third degree and disorderly conduct. (Private Defs. 56.1 Stmt. ¶ 6.) Two days after the incident, Sagendorf went to the District Attorney's office, where he read the complaint and signed a supporting deposition. (Defendants' Memorandum in Opposition to Motion for Spoliation of Evidence, Dkt. No. 81 ("Private Defs. Spol. Opp."), Ex. G.)
Both charges against Plaintiff were dismissed on August 24, 2009 pursuant to New York Criminal Procedure Law § 30.30, which mandates that the prosecutor be ready for trial in a class A misdemeanor case within 90 days of the commencement of the action. (Private Defs. 56.1 Stmt. ¶ 7)
On March 10, 2009, Plaintiff filed in New York State Supreme Court a Request for Judicial Intervention, seeking an Order to show cause to obtain pre-action discovery. Specifically, she sought an order directing Respondents Smith & Wollensky Restaurant/Wollensky's Grill and The Smith & Wollensky Restaurant Group, Inc. to "produce for inspection and copying any and all surveillance tapes and/or video tapes prepared in the regular course of business regarding the events" of the night of March 2-3 "in order to preserve evidence, to prevent spoliation, and in order to identify the appropriate individuals in order that petitioner might be able to prepare a proper caption in the event of litigation herein." (Pl. Spol. Mem., Ex. B.) The court issued an order to show cause why it should not order the respondents to produce these materials. (Id., Ex. A.) Sometime thereafter (although the record is not clear when) an attorney for the respondents submitted an affirmation in response to the order to show cause stating that "[t]he respondent has no opposition to the order sought by the petitioner regarding the preservation of any video from the security surveillance cameras . . . assuming that any such video was in fact recorded on the day and at the time of the incident in question and, if any, was maintained as of March 17, 2009, the date that the Order to Show Cause was served upon the respondent." (Id., Ex. C.)
The court entered an order "on default" on July 16, 2009. (Id., Ex. F.) That order provided that the respondents should preserve "any and all surveillance tapes and/or videotapes" pertaining to the incident, as well as "any and all accident, incident reports, or other records identifying the individuals involved in the assault . . . and any witnesses thereto . . . ." (Id.) On July 28, 2009, the parties entered into a stipulation stating that Smith & Wollensky Restaurant Group, Inc. would respond to the order within thirty days of the stipulation, and "as to those items where respondent is unable to comply, [would] submit an affidavit from an individual with knowledge to that effect." (Id., Ex. H.)
Sometime after September 2, 2009, the respondents submitted a "Response" to the Supreme Court's order, stating, inter alia: "INCIDENT REPORT -- There is no report prepared in the ordinary course of business . . . regarding the incident involving Jennifer Sachs." (Private Defs. Spol. Opp., Ex. K.) Sagendorf also submitted an affidavit stating that an electrical problem on the evening of March 2-3, 2009 rendered the security cameras inoperative, and that no video footage of the incident was available. He also described in general terms the patrons of Wollensky's that evening, but stated that the respondents "do not have any record which would reveal their names or addresses." (Id., Ex. L.)
Plaintiff filed the instant lawsuit on March 2, 2010, bringing various claims against the City Defendants and the Private Defendants related to the March 3, 2009 incident. The case was initially assigned to Judge Richard Sullivan. Pursuant to Judge Sullivan's August 17, 2011 Order, discovery in this matter closed on October 28, 2011. (See Dkt. No. 60.) On October 14, 2011, the case was reassigned to the undersigned pursuant to this District's Rules for the Division of Business Among District Judges governing the reassignment of cases to new district judges. (Dkt. No. 68.)
On November 28, 2011, Plaintiff moved for spoliation of evidence sanctions against the Private Defendants and Officers Cantwell, Musa, and Paquette. (Dkt. No. 77.) On December 16, 2011, the Private Defendants opposed Plaintiff's motion for spoliation of evidence sanctions. (Dkt. No. 81.)
The Private Defendants moved for summary judgment on all four claims against them on January 11, 2012. (Dkt. No. 94.)
The City Defendants moved for summary judgment on all six claims against them on January 9, 2012 (Dkt. No. 88), and filed their opposition to Plaintiff's motion for spoliation of evidence sanctions on January 11, 2012 (Dkt. No. 98).
After the instant motions were fully briefed, Plaintiff's attorney moved to withdraw as counsel. The Court granted that motion on July 12, 2012. (Dkt. No. 128.)
Proceeding pro se, Plaintiff contacted the Court and requested permission to submit additional documents and evidence that she was not able to submit in connection with the motions due to what she claimed were conflicts between her and her attorney. In an effort to ensure that the Court's decision was based on as complete a record as possible, the Court granted Plaintiff permission to submit this material. On August 1, 2012, Plaintiff submitted a variety of addenda to her submissions in connection with the motion, including unsworn addenda to her Rule 56.1 statements that did not contain references to any evidence in the record. She raised new allegations for the first time in these submissions, including, for example, that she did not throw a glass pitcher at Ford, because Wollensky's does not serve pitchers to its patrons.
The Court does not find that Plaintiff's new allegations are credible or are supported by the record. In addition, the new argumentation and unsworn testimony go beyond the additional "documents and evidence" that the Court granted Plaintiff permission to file. (Dkt. No. 128.) In any event, the Court has reviewed the ...