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Kovalchik v. City of New York

United States District Court, S.D. New York

September 18, 2014

THE CITY OF NEW YORK and TONY SIMMONS, individually and in his official capacity, Defendants.


RONNIE ABRAMS, District Judge.

Plaintiff was a resident at a New York City youth detention facility. She alleges that Defendant Tony Simmons, an employee of New York City's Department of Juvenile Justice ("DJJ"), raped her in an elevator at the Manhattan Family Courthouse while transporting her from the youth holding area to the courtroom.

Before the Court are the cross motions of Plaintiff and Defendant City of New York (the "City") for summary judgment. Because the Court concludes that Plaintiff has failed to demonstrate a basis for holding the City liable under either federal or state law, the City's motion is granted, and Plaintiff's motion for summary judgment against the City is denied. Plaintiff's motion for summary judgment against Simmons is also denied, because there is a genuine issue of material fact as to whether the alleged sexual assault occurred. Simmons has not appeared in this action, however, and a default judgment may thus be appropriate. Accordingly, if Plaintiff wishes to pursue judgment against Simmons, within thirty days of this Order she should prepare a default judgment submission in accordance with this Court's Individual Rules and Practices.


The Alleged Rape: In September 2005, Plaintiff was a "non-secured" resident of the 145th Street Youth Facility in New York City. (Pl.'s 56.1 ¶ 4.) On September 12, 2005, she was ordered to appear at Manhattan Family Court. ( Id. ¶ 5.) That day, Defendant Simmons - who, by that time, had been employed by DJJ for about thirteen years (id. ¶ 1) - and a female counselor picked up Plaintiff, transported her to the courthouse, and took her to the "girls['] holding room." ( Id. ¶ 6.) There, she waited "with other girls and a female juvenile counselor" for her hearing. ( Id. ¶ 7.)

Plaintiff asserts that Simmons transported her, alone, from the holding area to the courtroom. ( Id. ¶ 10.) At her deposition, she testified that after she entered the elevator with Simmons, he used his elevator key to send the elevator down to the basement instead of to the courtroom. (Declaration of David Pollack, Sept. 13, 2013 ("Pollack Decl."), Ex. E at 37-38.) Once the elevator stopped, she alleges, Simmons "pushed himself behind" her and raped her. ( Id. at 38; Pl.'s 56.1 ¶ 8.) He then brought Plaintiff to the courtroom. (Pl.'s 56.1 ¶ 8.) Plaintiff was fifteen years old at the time. ( Id. ¶ 7.)

Simmons testified at his deposition that he did not transport Plaintiff from the holding area to the courtroom that day, or otherwise accompany her to the courtroom in an elevator. (Pollack Decl. Ex. B at 48.) The female counselor present in the holding area that day, Patricia Jerry, testified at Simmons's criminal trial. (Pollack Decl. Ex. H.) Although Jerry did not specifically recall the day of the alleged rape, she testified - after reviewing the "logbook" from that day - that it would have been "normal procedure" for either her or her supervisor to transport the female detainees to the courtroom, and that she had no recollection or record of Simmons transporting Plaintiff. ( Id. at 370.)

The parties agree that when Plaintiff arrived at the hearing that day, she did not tell her mother or her attorney about the rape, and did not tell any official about it until 2008, when Simmons was being investigated for other allegations of sexual abuse. (Pl.'s 56.1 ¶ 11; Pollack Decl. Ex. E at 40.) Simmons was eventually criminally prosecuted for the abuse and went to trial. (Pl.'s 56.1 ¶¶ 14-15.) Although he was acquitted of raping Plaintiff, Simmons was convicted of sexually assaulting two other juveniles under his care, and was sentenced to a term of incarceration.[2] ( Id. ¶ 16.)

DJJ Policies: The parties also agree that at the time of the alleged incident, DJJ had policies expressly prohibiting sexual harassment of supervisees, precluding employees from having contact with supervisees unless necessary to carry out official business, and requiring counselors to report any child abuse. ( Id. ¶¶ 2-3, 19.) DJJ policies further required at least one counselor of the same gender to be present when transporting residents from residential facilities "to clinic appointments, funerals or other approved field activities." (Pollack Decl. Ex. K at 210; see also Pl.'s 56.1 ¶ 20.) The record does not contain any evidence regarding a policy specifically addressing how residents should be transported to court or supervised while awaiting court appearances.

Procedural History : In her Complaint in this case, Plaintiff raises a § 1983 claim against Simmons and asserts municipal liability against the City under a "deliberate indifference" theory. (Compl. ¶¶ 30-48.) She also asserts state law claims for assault and battery against Simmons (id. ¶¶ 57-63); claims for negligence, negligent supervision, and "negligent hiring/training/retention" against the City (id. ¶¶ 70-86); and a claim for intentional inflection of emotional distress against both Simmons and the City (id. ¶¶ 64-69).

The City answered the Complaint and, after almost four years of discovery and stays related to the criminal proceeding, filed the instant motion for summary judgment. According to the docket, Simmons was served with the Complaint and Summons on May 28, 2009. (ECF no. 6.) Although he was deposed on at least two occasions from prison as part of this litigation (Pollack Ex. B at 1; Decl. of Arkady Frekhtman, Oct. 14, 2013 ("Frekhtman Decl.") Ex. C at 1), Simmons has not responded to the Complaint or otherwise appeared in this action, and Corporation Counsel has made clear that it does not represent him (see Def.'s Mem. of Law at 1 n.1).


On a motion for summary judgment, the Court must "constru[e] the evidence in the light most favorable to the non-moving party and draw[] all reasonable inferences in its favor." In re Publ'n Paper Antitrust Litig. , 690 F.3d 51, 61 (2d Cir. 2012). Where, as here, the parties have cross-moved for summary judgment, the Court analyzes each motion separately, "in each case construing the evidence in the light most favorable to the non-moving party." Novella v. Westchester Cnty. , 661 F.3d 128, 139 (2d Cir. 2011).

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

The Court first considers Plaintiff's § 1983 claims against the City, then addresses her supplemental state law claims against the City, and finally turns to her claims against Simmons.

A. Section 1983 Claims Against the City of New York

Count Two of the Complaint asserts a claim for "Municipal Liability" against the City of New York, and Count Three asserts a claim for "Deliberate Indifference to Plaintiff's Constitutional Rights Under 42 U.S.C. § 1983."[3 ...

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