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Blake v. City of New York

Supreme Court of New York, Second Department

March 29, 2017

Tyrone Blake, et al., respondents-appellants,
v.
City of New York, et al., appellants-respondents. Index No. 22581/11

          Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow, Alison E. Estess, and Kathy Chang Park of counsel), for appellants-respondents.

          Rubert & Gross, P.C., New York, NY (Soledad Rubert of counsel), for respondents-appellants.

          MARK C. DILLON, J.P., SYLVIA O. HINDS-RADIX, JOSEPH J. MALTESE, BETSY BARROS, JJ.

          DECISION & ORDER

         In a consolidated action, inter alia, to recover damages for false arrest, malicious prosecution, and civil rights violations pursuant to 42 USC § 1983, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered April 25, 2014, as denied those branches of their motion which were pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action of the plaintiff Dwayne Johnson and the plaintiffs' ninth, tenth, and eleventh causes of action in their entirety, denied, as premature, those branches of their motion which were for summary judgment dismissing the plaintiffs' second, third, fourth, ninth, tenth, and eleventh causes of action in their entirety, and granted that branch of the plaintiffs' cross motion which was to compel them to comply with certain discovery demands, and the plaintiffs cross-appeal from so much of the same order as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action of the plaintiff Tyrone Blake insofar as asserted against the defendants Sgt. James Hanrahan, Sgt. Sean O'Hara, and Lt. Mic Miltenberg, and the fourth cause of action of the plaintiff Tyrone Blake.

         ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the defendants' motion which were for summary judgment dismissing the plaintiffs' fourth causes of action and the plaintiffs' ninth and tenth causes of action insofar as asserted against the defendants Richard A. Brown and Brian F. Allen on the ground of absolute immunity, and substituting therefor a provision granting those branches of the motion, (2) by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action of the plaintiff Tyrone Blake, and substituting therefor a provision denying that branch of the motion as academic, and (3) by deleting the provision thereof granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action of the plaintiff Tyrone Blake insofar as asserted against the defendants Sgt. James Hanrahan, Sgt. Sean O'Hara, and Lt. Mic Miltenberg, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

         The plaintiffs, Tyrone Blake and Dwayne Johnson, were arrested and indicted for their alleged role in a shooting incident that took place on October 6, 2008, in Queens County. Although the complainant initially told the police that he could not identify the perpetrators because they wore face masks that only revealed their eyes, he later identified the plaintiffs as his assailants in two separate photographic arrays shown to him by the police. The defendant Det. John Roberts created the photographic arrays based upon information given to him by a suspect arrested in connection with a different incident. This informant later denied ever making a statement to the police regarding the plaintiffs' involvement in the shooting. The plaintiffs were incarcerated for approximately 16 months while the charges were pending. The charges were ultimately dismissed because the complainant refused to testify at their trial.

         The plaintiffs each commenced a separate action against the same defendants-the City of New York, five individual police officers, and Queens County District Attorney Richard A. Brown and Assistant District Attorney Brian F. Allen (hereinafter together the District Attorney defendants)-asserting the same 12 causes of action to recover damages for, inter alia, false arrest, malicious prosecution, and civil rights violations pursuant to 42 USC § 1983. The two actions were subsequently consolidated. Thereafter, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaints or, in the alternative, for summary judgment dismissing the complaints, and the plaintiffs cross-moved, inter alia, to compel the defendants to comply with certain discovery demands. In the order appealed from, the Supreme Court, inter alia, granted those branches of the defendants' motion which were to dismiss Blake's causes of action alleging common-law false arrest and malicious prosecution insofar as asserted against the defendants Sgt. James Hanrahan, Sgt. Sean O'Hara, and Lt. Mic Miltenberg, and Blake's cause of action alleging common-law malicious prosecution against the District Attorney defendants, for failure to name these defendants in his notice of claim. The court denied those branches of the defendants' motion which were to dismiss the plaintiffs' remaining causes of action alleging malicious prosecution against the District Attorney defendants on the ground of absolute immunity. The court also denied those branches of the defendants' motion which were to dismiss or, alternatively, for summary judgment dismissing the plaintiffs' remaining causes of action alleging common-law false arrest and malicious prosecution and their causes of action alleging violations of 42 USC § 1983 predicated on false arrest and malicious prosecution, and it granted that branch of the plaintiffs' cross motion which was to compel the defendants to comply with certain discovery demands (see Blake v City of New York, 43 Misc.3d 1212 [A], 2014 NY Slip Op 50583[U] [Sup Ct, Queens County]).

         When dismissal is sought pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 87; Breytman v Olinville Realty, LLC, 54 A.D.3d 703, 703-704). A municipality may not be held liable pursuant to 42 USC § 1983 solely on a theory of respondent superior (see Monell v New York City Dept. of Social Servs., 436 U.S. 658, 691). "To hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy" (Vargas v City of New York, 105 A.D.3d 834, 837, citing Monell v New York City Dept. of Social Servs., 436 U.S. at 694; see Elie v City of New York, 92 A.D.3d 716, 717).

         Here, despite the defendants' contentions to the contrary, the allegations in the complaints sufficiently allege that the City maintained a policy or custom that caused the plaintiffs to be subjected to a denial of their constitutional rights (see Monell v New York City Dept. of Social Servs., 436 U.S. at 694; Vargas v City of New York, 105 A.D.3d at 836; Elie v City of New York, 92 A.D.3d at 717; Jackson v Police Dept. of City of N.Y., 192 A.D.2d 641; see generally Pendleton v City of New York, 44 A.D.3d 733, 737). Accordingly, the complaints state a cause of action against the City to recover damages for a violation of 42 USC § 1983, and the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss those causes of action.

         "[A] prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People's case, " but a prosecutor is entitled only to qualified immunity when acting in an investigatory capacity (Spinner v County of Nassau, 103 A.D.3d 875, 877; see Johnson v Kings County Dist. Attorney's Off., 308 A.D.2d 278, 285). Here, the complaints allege activities in processing criminal charges after the plaintiffs' arrest by police based upon evidence assembled by police. Therefore, the District Attorney defendants are entitled to absolute immunity (see Dann v Auburn Police Dept., 138 A.D.3d 1468, 1469). Accordingly, the Supreme Court should have awarded the defendants summary judgment dismissing the plaintiffs' fourth causes of action, alleging common-law malicious prosecution against the District Attorney defendants, and the plaintiffs' ninth and tenth causes of action, alleging civil rights violations pursuant to 42 USC § 1983, insofar as asserted against the District Attorney defendants, on the basis of absolute immunity (see Spinner v County of Nassau, 103 A.D.3d at 877; Johnson v Kings County Dist. Attorney's Off., 308 A.D.2d at 285). Inasmuch as the court should have awarded summary judgment dismissing Blake's fourth cause of action on the ground of absolute immunity, that branch of the defendants' motion which was to dismiss that cause of action pursuant to CPLR 3211(a)(7) was rendered academic.

         Blake's failure to name Hanrahan, O'Hara, and Miltenberg in his notice of claim did not warrant dismissal of his ninth and tenth causes of action, alleging civil rights violations pursuant to 42 USC § 1983, insofar as asserted against them, since a notice of claim is not a condition precedent to maintaining a cause of action pursuant to 42 USC § 1983 (see Vargas v City of New York, 105 A.D.3d at 836). Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were to dismiss Blake's ninth and tenth causes of action insofar as asserted against those individual defendants.

         Furthermore, Blake's failure to name Hanrahan, O'Hara, and Miltenberg in his notice of claim did not warrant dismissal of his second and third causes of action, alleging common-law false arrest and malicious prosecution, respectively, insofar as asserted against those individuals.

         We recognize that there is a split in appellate authority on the issue of whether a plaintiff is required to name individual municipal employees in a notice of claim in order to maintain a subsequent action against those employees. The Appellate Division, First Department, has held that "General Municipal Law § 50-e makes unauthorized an action against individuals who have not been named in a notice of claim" (Tannenbaum v City of New York, 30 A.D.3d 357, 358, citing White v Averill Park Cent. School Dist., 195 Misc.2d 409, 411 [Sup Ct, Rensselaer County]). In Alvarez v City of New York (134 A.D.3d 599), the First Department explained in a plurality opinion that its rationale for so holding is that a notice of claim which does not put the municipality on notice that it will seek to impose liability upon specific employees in their individual capacities is insufficient to allow the municipality to make a timely investigation into and assessment of the merits of the claim against those employees. The plurality opinion in that case stated that the names of individual employees, if unknown, should still be named as John or Jane Does to enable the municipality to properly investigate the claims and to put individual defendants on notice that they will be sued. However, the purpose of the notice of claim requirement is to notify the municipality, not the individual defendants (see Zwecker v Clinch, 279 A.D.2d 572, 573).

         In contrast, the Appellate Division, Fourth Department, has held that naming individual municipal employees in a notice of claim is not a condition precedent to joining those individuals as defendants in the action (see Goodwin v Pretorius, 105 A.D.3d 207). In Goodwin, the Fourth Department noted that General Municipal Law § 50-e(2), which sets forth the requirements for a notice of claim, does not include a requirement that specific individual employees be named, and concluded that "[t]he underlying purpose of the statute may be served without requiring a plaintiff to name the individual agents, officers or employees in the notice of claim" (id. at 216). In Pierce v Hickey (129 A.D.3d 1287, 1289), ...


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