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Breitkopf v. Gentile

United States District Court, E.D. New York

August 29, 2014


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For Plaintiff: John Zervopolous and Joseph S. Bavaro of Salenger Sack Kimmel & Bavaro, LLP, Woodbury, NY; Eugene B. Nathanson, New York, NY; Michael A. Baranowicz of Montfort, Healy, McGuire & Salley, Garden City, NY.

For Gentile: George J. Carpenter of Rafter and Associates, New York, NY.

For Ramos and the MTA: Steve S. Efron and Renee Lucille Cyr of the Law Office of Steve S. Efron, New York, NY.

For Cafarella: Sandra Bonder and Beth Shapiro of Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York, NY.

For Cafarella: Joseph M. Puzo of Zaklukiewicz, Puzo & Morrissey, LLP, Terrance, NY.

For The Estate: Jeffrey M. Pincus of Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY; Daniel A. Bartoldus of Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Islandia, NY.

For The DiGeronimos: Joseph H. Perrone of Ryan, Perrone & Hartlein, P.C., Mineola, NY.

For The City: Elizabeth N. Krasnow of the New York City Law Department, New York, NY.

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JOSEPH F. BIANCO, United States District Judge.

Plaintiff Paula Breitkopf (" plaintiff" ), individually and on behalf of the estate of her deceased husband, Nassau County Police Department (" NCPD" ) Officer Geoffrey Breitkopf (" Breitkopf" or " decedent" ), brings this action against defendants Metropolitan Transportation Authority (" MTA" ) Police Officer Glenn Gentile (" Gentile" ); MTA Police Officer Jose Ramos (" Ramos" ); the MTA and the MTA Police Department (" MTAPD" ) (collectively, the " MTA" ); John Cafarella (" Cafarella" ); the Estate of Anthony G. DiGeronimo (" Anthony" or the " Estate" ); David DiGeronimo (" David" ) and Joanne DiGeronimo (" Joanne" ) (collectively, the " DiGeronimos" ); and the City of New York (" NYC" or the " City" ). Gentile killed Breitkopf by friendly fire on March 12, 2011, during the aftermath of an incident that resulted in Anthony's death at his home in Massapequa Park, New York. Plaintiff brings numerous claims against defendants, including federal claims pursuant to 42 U.S.C. § 1983 for violations of Breitkopf's Fourth Amendment rights, state law negligence and intentional tort claims for personal injury and wrongful death, and state law claims for violations of New York General Municipal Law (" GML" ) § 205-e.

Presently before the Court are motions for summary judgment from all defendants except the Estate. (Motion for Summary Judgment by John Cafarella (" Cafarella Motion" ), Docket No. 95; Motion for Summary Judgment by David D. DiGeronimo and Joanne DiGeronimo (" DiGeronimo Motion" ), Docket No. 116; Motion for Summary Judgment by Glenn Gentile (" Gentile Motion" ), Docket No. 119; Motion for Summary Judgment by Metropolitan Transportation Authority, Metropolitan Transportation Authority Police Department, Jose Ramos (" MTA & Ramos Motion" ), Docket No. 139; Motion for Summary Judgment by City of New York (" NYC Motion" ), Docket No. 149.) For the reasons set forth in detail below, the motions for summary judgment are granted in part and denied in part with respect to Gentile, the MTA, and Cafarella, and granted in their entirety with respect to Ramos, the City, and the DiGeronimos.

In particular, with respect to the Section 1983 claim against Gentile, the Court concludes that genuine disputes of material fact preclude summary judgment on the issue of whether Gentile's failure to realize Breitkopf was a police officer and Gentile's decision to use lethal force were objectively reasonable under the Fourth Amendment. Those disputes also preclude summary judgment on the Section 1983 claim against Gentile on qualified immunity grounds. For the same reasons, the state law claims for battery and wrongful death against Gentile, as well as the state law claim against the MTA under a theory of respondeat superior liability, also survive summary judgment.

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With respect to the Section 1983 and state law battery and wrongful death claims against Ramos, the Court concludes that no rational jury could find that Ramos's decision to grab Breitkopf, upon hearing retired New York City Police Department (" NYPD" ) Sergeant Cafarella yell " gun" (or " drop your weapon" ) as he saw Breitkopf walking past him in plainclothes and holding a rifle, was objectively unreasonable and, thus, constituted excessive force under the circumstances. In the alternative, the Court concludes that Ramos's actions would be protected by qualified immunity.

With respect to the Section 1983 claims against the MTA and the City for failure to adequately train Gentile and Ramos, the Court concludes that such claims cannot survive summary judgment because, inter alia, there is insufficient evidence in the record to create a genuine issue of material fact on those claims. The Court also concludes that any negligence claim against the City cannot survive summary judgment.

With respect to the negligence and wrongful death claims against Cafarella, the Court concludes that there are disputed issues of material fact on the issue of whether Cafarella's alleged involvement in the police activity (as a retired NYPD sergeant) and his decision to yell " gun" (or words to that effect) negligently caused Breitkopf's death. Thus, summary judgment on these claims against Cafarella is unwarranted. The Court similarly concludes that the Section 205-e claim against Cafarella, based upon an alleged violation of N.Y. Penal Law § 190.25(3), survives summary judgment, because there are issues of fact as to whether Cafarella was trying to induce Breitkopf and/or other police officers to act in reliance on his pretended official or approved authority, and induced Ramos and Gentile to act on that pretended authority.

With respect to the negligence claim against the DiGeronimos, the Court concludes that any alleged act or omissions by them, including as it relates to their son's possession of knives (which precipitated the police activity), cannot form the basis of a negligence claim against them as it relates to Breitkopf's death. The DiGeronimos had no duty to prevent friendly-fire shootings among police officers at the scene after Anthony was killed, and, in any event, no rational jury could conclude, in light of the other intervening events, that the DiGeronimos' alleged negligence involving their son proximately caused Breitkopf's death. Thus, summary judgment in favor of them on the negligence claim is warranted.

Finally, the Court also concludes that, with the exception of the above-referenced claim against Cafarella, the GML § 205-e claims cannot survive summary judgment.

I. Background

A. Factual Background

The Court takes the following facts from the parties' affidavits, depositions, exhibits, and Rule 56.1 Statements of Fact. The Court construes the facts with respect to each motion in the light most favorable to the nonmoving party, plaintiff. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). The parties' Rule 56.1 statements contain specific citations to the record, and the Court generally cites to the statements rather than to the underlying citations. Unless otherwise noted, where a Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any contradictory evidence in the record.

1. The Death of Anthony DiGeronimo

On March 12, 2011, the day Gentile shot Breitkopf, the DiGeronimos; their 21-year-old

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son, Anthony; and Anthony's brother, Jonathan, resided at 5 Fourth Avenue in Massapequa Park, New York. (Plaintiff's Supplementary Facts in Response to the DiGeronimos' Rule 56.1 Statement (" Pl. DiGeronimo 56.1 Suppl." ) ¶ 1.) The DiGeronimos previously owned a hobby shop in Amityville, New York, where they sold radio-controlled cars, rockets, knives, and swords, among other products. ( Id. ¶ 2.) Although Anthony had worked in the store, he was unemployed in March 2011, and his parents supported him economically. ( Id. ¶ 3.) Anthony, an avid video gamer who would wear costumes while playing, was interested in different religions, including Satanism. (Plaintiff's Counterstatement of Facts in Response to the DiGeronimos' Rule 56.1 Statement (" Pl. DiGeronimo 56.1 Counterstatement" ) ¶ 4.) He maintained a collection of knives, swords, and other weapons in his bedroom, which he kept unlocked and his mother entered almost every day. ( Id. ¶ ¶ 5-6.) One of the knives was an Interceptor, a knuckles blade knife that Anthony generally kept in a plastic holder. (DiGeronimo 56.1 ¶ 7; see MySpace Profile Screenshot, Response in Opposition to the Motion for Summary Judgment of David D. DiGeronimo and Joanne DiGeronimo (" DiGeronimo Opp." ) Ex. E (showing Anthony holding the Interceptor).) Joanne testified that, prior to March 12, 2011, she never saw Anthony leave the house with any weapons, and she had no concerns about his interests. (Pl. DiGeronimo 56.1 Counterstatement ¶ 8; Pl. DiGeronimo 56.1 Suppl. ¶ 11.)

At around noon on March 12, the DiGeronimos were in their kitchen when Anthony entered the kitchen dressed in an outfit he often wore while playing video games, including a mask that covered his face from his nose down to his chin. (Pl. DiGeronimo 56.1 Suppl. ¶ 12.) David told Anthony to take the mask off; the two then had a heated exchange, and David told Anthony to leave and come back when his attitude changed. ( Id. ¶ ¶ 13-14.) During his first deposition, David testified that when Anthony left the house, he was carrying a thin, black-handled, seven-inch knife. ( Id. ¶ 16; see also Memorandum of Interview with David DiGeronimo (" DiGeronimo Interview" ), DiGeronimo Opp. Ex. D (corroborating first deposition testimony during interview on June 10, 2011).) During a later deposition, David recanted and stated: " When [Anthony] was in the kitchen before he left, I didn't see knives at that point. When he came back to the house is when I saw the knives on him, but before he left, I didn't see it." (Second Deposition of David DiGeronimo (" Second D. DiGeronimo Dep." ) at 6:4-19, DiGeronimo Opp. Ex. F.) The DiGeronimos did not see Anthony again until that evening.

At approximately 8:10 p.m., NCPD Officer Paul Lewis (" Lewis" ) responded to the intersection of Front Street and Fourth Avenue in Massapequa Park after a 911 caller reported seeing a male walking with knives.[1] (Deposition of Paul Lewis (" Lewis Dep." )

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at 10:3-14:12, MTA & Ramos Motion Ex. A; Nassau County District Attorney's Office: " Investigation into the Deaths of Anthony DiGeronimo and Officer Geoffrey Breitkopf" (" DA Report" ), MTA & Ramos Motion Ex. Y; see also Pl. DiGeronimo 56.1 Suppl. ¶ 18.) Lewis encountered Anthony, who was wearing a mask and clothing Lewis described as " satanic in nature," and carrying a knife in each hand. (Lewis Dep. at 15:21-16:19; Pl. DiGeronimo 56.1 Suppl. ¶ 21.) Lewis ordered Anthony to drop the knives, and, in response, Anthony charged Lewis. (Lewis Dep. at 19:12-21:7.) Cafarella, a retired NYPD sergeant, also was present. He urged Anthony to comply with Lewis's orders. (Lewis Dep. at 28:14-20; Deposition of John Cafarella (" Cafarella Dep." ) at 11:4-18, 34:0-35:22, 38:11-24, MTA & Ramos Motion Ex. B; see also Cafarella 56.1 ¶ 1.) Anthony, ignoring Lewis's commands, eventually stopped charging, turned back, and started walking towards his home. (Lewis Dep. at 23:10-24:6.) Lewis radioed for an Emergency Services Unit, and Cafarella called 911 to request assistance for Lewis. (Lewis Dep. at 31:3-32:10; Cafarella Dep. at 41:8-12.) Cafarella approached the house to get the address. (Plaintiff's Supplementary Facts in Response to Cafarella's Rule 56.1 Statement (" Pl. Cafarella 56.1 Suppl." ) ¶ 15.)

After Anthony reached his house and David ushered him inside, Lewis and NCPD Officer Richard McDonald entered with their guns drawn. (Pl. DiGeronimo 56.1 Suppl. ¶ ¶ 25-27; Lewis Dep. at 36:3-39:2.) Anthony eventually emerged from his bedroom, came towards the officers with a knife held upward, and was shot and killed. (MTA & Ramos 56.1 ¶ 3; DA Report, at 6-7.) Officers then transmitted a radio broadcast of " shots fired" and requested an ambulance. (MTA & Ramos 56.1 ¶ 4.) This was quickly followed by the broadcast of a code 1087, or " slow down" order, meaning that while officers could still respond to the scene, there was no immediate urgency to do so, or need to come as fast as before. ( See id. ¶ 5; Plaintiff's Counterstatement of Facts in Response to the MTA's and Ramos's Rule 56.1 Statement (" Pl. MTA & Ramos 56.1 Counterstatement" ) ¶ 5.) NCPD officers also panned out and created a perimeter around the DiGeronimos' house. (Pl. DiGeronimo 56.1 Suppl. ¶ 39.)

After the whole incident, including Breitkopf's death, officers from the NCPD Crime Scene Unit responded and took photographs of Anthony's room. ( Id. ¶ 46.) Shelves contained a hatchet, mallet, swords, and several large and small knifes. ( Id.) Officers recovered a knife, leather cap, and a black and gray mask on the floor near Anthony's body. ( Id. ¶ 47.) Among the weapons recovered were two 16-inch (with 10-inch blade) knives, a wooden-handled knife, a machete with a 17.75-inch blade, a samurai sword, a Dacor knife with a 7-inch serrated blade, a Marines saber with a 29-inch blade, and the Interceptor. ( Id. ¶ 48.)

2. Gentile and Ramos Respond

The night of the shootings, MTAPD Officers Gentile and Ramos were patrolling in a marked vehicle in Massapequa. (MTA & Ramos 56.1 ¶ 6.) They saw an NCPD cruiser speed by with its lights and sirens activated, heard an " agitated" broadcast over their MTA-issued NCPD radio concerning an emotionally disturbed person in the area of Front Street and Fourth Avenue in Massapequa Park, and proceeded to that location. ( Id. ΒΆ 7; Pl. MTA & Ramos 56.1 ...

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