United States District Court, W.D. New York
Anna C. Czarples, Esq., Jacob P. Welch, Esq., Law Office of Jacob P. Welch, Corning, NY, for Plaintiff.
Andrew Dylan, Esq., Florina Altshiler, Esq., Michael P. McClaren, Esq., Webster Szanyi, LLP, Buffalo, NY, for Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Siragusa, J. Before the Court is Defendant's Notice of Motion, filed on November 7, 2014, ECF No. 13, seeking dismissal of Counts IV, V, and VI of the complaint on the grounds of statute of limitations and untimely notice of claim, pursuant to New York Civil Practice Law and Rules § 215(3) and New York General Municipal Law § 50-i. For the reasons stated below, Defendant's application is denied.
Plaintiff Anna Marie Doyle ("Doyle") filed a Summons with Notice in the Steuben County Clerk's Office on August 1, 2014, alleging the following:
The nature of this action is [f]or Federal 1983 relief, violation of civil rights under applicable New York and Federal law, personal injury, pain and suffering, punitive damages, abuse under the color of law, failure to protect under the law, false arrest, false imprisonment, malicious prosecution, and other torts arising from an incident on or about the 8th day of May.
ECF No. 1. Defendant City of Corning ("Corning") removed the case to this Court on August 18, 2014, ECF No. 1.
Thereafter, Doyle filed a complaint on October 17, 2014, ECF No. 8. In her complaint, Doyle makes the following claims: (I) malicious prosecution pursuant to 42 U.S.C. § 1983; (II) arrest without probable cause pursuant to 42 U.S.C. § 1983; (III) failure to implement appropriate policies, customs, and practices pursuant to 42 U.S.C. § 1983; (IV) assault and battery; (V) false imprisonment; and (VI) negligence. Counts IV, V, and VI are all state law claims.
Doyle alleges the following facts in support of her causes of action:
5. On or about May 8, 2013, plaintiff was shopping at Walgreens Pharmacy in Corning, New York. Plaintiff is highly disabled and depends upon a wheelchair for mobility.
6. On the aforementioned date two City of Coming policer officers entered the aforementioned Walgreens, apparently intending to arrest plaintiff for Criminal Mischief in the Third Degree.
7. During said arrest the police officers negligently and in reckless disregard for plaintiff's obviously weakened and disabled condition pulled plaintiff's left arm in an extreme backwards manner, causing serious injury to said arm and shoulder.
8. This reckless and inappropriate arresting technique caused, among other things, a rotator cuff tear, an exacerbation of a prior left shoulder injury, wrist injuries and scratches.
9. Upon information and belief, said left shoulder injury will require future surgery and is believed to be permanent.
10. That the said police used excessive and wrongful force against the plaintiff, who was in a motorized wheelchair, is disabled, female, and of a small and frail build. The police should have used an arresting technique that was more appropriate for a disabled suspect, instead the police negligently used two large male police officers to arrest plaintiff.
11. Said police filed an additional false charge of resisting arrest against plaintiff, in addition to the original charge of criminal mischief.
12. Plaintiff was acquitted of all of the aforementioned charges at a trial by jury.
13. The aforementioned police misconduct and false charges are likely retaliation for plaintiff's complaints to the district attorney about said police department. This occurred approximately eight (8) days prior to her arrest.
14. Said police also negligently mistreated the disabled plaintiff during the booking process as well, forcing her to walk without any assistive device nor her needed wheelchair and making plaintiff stand excessively for someone of plaintiff's disabled condition.
Compl. ¶¶ 5-14. At oral argument on March 19, 2015, the Court directed the parties to file further briefing on the issue of the General Municipal Law § 50 notices. Plaintiff filed a supplemental affidavit and memorandum of law on March 26, and Defendant ...