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Tardif v. City of New York

United States District Court, S.D. New York

August 23, 2017

MARY M. TARDIF, Plaintiff
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, INSPECTOR JOHN O'CONNELL, DEPUTY INSPECTOR EDWARD WINSKI, POLICE OFFICER JAMES MCNAMARA, POLICE OFFICER ALENA AMINOVA, POLICE OFFICER KENDAL CREER, POLICE OFFICER MARSHA RUMBLE, POLICE OFFICER FELIX SCHMIDT, DEPUTY INSPECTOR DANIEL MULLIGAN, SERGEANT THOMAS MCMANUS, AND JOHN DOE NYPD OFFICERS ## 1-9, Defendants.

          OPINION AND ORDER

          KIMBA M. WOOD UNITED STATES DISTRICT JUDGE

         The parties have filed cross-motions for reconsideration of this Court's March 22, 2017 Opinion and Order (O & O, [Doc. No. 187]), which adopted in part Magistrate Judge Fox's Report and Recommendation (R & R, [Doc. No. 178]) on Defendants' motion for summary judgment (Doc. No. 164). For the reasons set forth below, Plaintiffs motion is GRANTED in part and DENIED in part. Defendants' motion is also GRANTED in part and DENIED in part.

         I. BACKGROUND

         On June 13, 2013, Plaintiff Mary Tardif commenced this action for damages against the City of New York ("the City"), and various NYPD officers. (Compl. [Doc. No. 1 ]). Her claims arose out of the NYPD's response to her involvement in Occupy Wall Street protests in March and April of 2012. Plaintiffs complaint contained allegations of false arrest, excessive force, deliberate indifference to a serious medical condition, unconstitutional conditions of confinement, violations of the Americans with Disabilities Act, assault and battery, First Amendment retaliation, malicious prosecution, and tortious conduct by the City under the doctrine of respondeat superior. Id.

         Plaintiff has since filed two amended complaints, the second of which was docketed on January 15, 2016 ("TAC") [Doc. No. 135]). The parties initially participated in mediation, as part of this District's process for resolving § 1983 litigation. The parties were unable to reach a settlement. Defendants filed a motion for summary judgment on June 1, 2016 (Doc. No. 164). The motion was fully submitted on July 15, 2016 (Doc. No. 177). Magistrate Judge Fox issued his Report and Recommendation on February 6, 2017. (Doc. No. 178). The parties filed objections to Magistrate Judge Fox's Report and Recommendation on February 21, 2017. (Doc. Nos. 179 - 181). The parties each responded to these objections on March 7, 2017. (Doc. Nos. 182, 183). This Court issued its Opinion and Order adopting in part Magistrate Judge Fox's Report and Recommendation on March 22, 2017. (Doc. No. 187). The parties each filed their motions for reconsideration on April 21, 2017. (Doc. Nos. 190 - 193).

         II. STANDARD GOVERNING A MOTION FOR RECONSIDERATION

         "[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F.Supp.2d 613, 614 (S.D.N.Y. 2000) (Berman, J.) (internal quotation marks omitted). To prevail on a motion for reconsideration and reargument, "the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." Montanile v. Nat'l Broad. Co., 216 F.Supp.2d 341, 342 (S.D.N.Y. 2002) (Marrero, J.). "A motion for reconsideration may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by the Court." Davidson v. Scully, 172 F.Supp.2d 458, 461 (S.D.N.Y. 2001) (Leisure, J.). The standard is "strict in order to dissuade repetitive arguments on issues that have already been considered fully by the court." Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F.Supp. 209, 211 (S.D.N.Y. 1990) (Cannella, J.) (quoting Caleb & Co. v. E.I. DuPont de Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y. 1985) (Sweet, J.)).

         III. DISCUSSION

         A. Plaintiffs Motion for Reconsideration

         Plaintiff asks this Court to reconsider every claim on which it granted summary judgment in favor of Defendants. The Court will address each of her claims in turn, in the order in which they were presented in her motion.

         Respondeat Superior Claim

         Plaintiff laid out her respondeat superior allegations in the Ninth Cause of Action of her Third Amended Complaint. She stated that "the defendant officers were engaged in governmental activity as on duty New York City police officers when they falsely arrested Plaintiff without probable cause, used excessive force in the course of arresting Plaintiff, were deliberately indifferent to Plaintiffs serious medical condition, and subjected Plaintiff to unconstitutional conditions of confinement." She further alleged that "[t]he defendant officers' willful and tortious acts were undertaken within the scope of their employment by defendant City of New York and in furtherance of the defendant City of New York's interest." (TAC, ¶¶ 230-31). Earlier in her complaint, Plaintiff specified that her claims of false arrest, excessive force, deliberate indifference to a medical condition, and unconstitutional conditions of confinement all arose under § 1983. (TAC, ¶¶ 147, 156, 172, 185).

         In recommending summary judgment in favor of Defendants in his Report and Recommendation, Magistrate Judge Fox relied on well-settled principles articulated in Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978). He explained that the City cannot be held liable on a respondeat superior theory when the underlying claims alleged arise under § 1983, unless the Plaintiff can prove the alleged constitutional violations occurred pursuant to a municipal policy or custom. (R & R, 17-18). Magistrate Judge Fox further concluded that Plaintiff could not prove that "any violation of her constitutional rights was caused by an action pursuant to a policy or custom of the City." Id. at 18. In recommending that all claims against the City of New York be dismissed on Monell grounds, Magistrate Judge Fox did not distinguish between Plaintiffs predicate claims that arose under state law (her assault and battery claim) and those that arose under federal law (her § 1983 claims). However, in adopting Magistrate Judge Fox's recommendation, this Court noted that Plaintiffs complaint clearly limited her respondeat superior allegations to her four § 1983 claims, rendering summary judgment on Monell grounds appropriate even though Plaintiffs complaint contained one cause of action that arose under New York State law. (O & O, 10-11).

         Plaintiff now argues that the Court did not construe her respondeat superior claims liberally enough in adopting Magistrate Judge Fox's recommendation that the claims be dismissed, and that the Court was required to construe her insufficient pleadings in her favor if her claim might otherwise have been grounded in the factual record. First, she argues that she meant to assert respondeat superior liability with respect to her New York State law assault and battery allegations (a claim that the Court could not have dismissed on Monell grounds), despite the fact that her Third Amended Complaint indicated otherwise. Second, she contends that the factual record made clear that she asserted respondeat superior liability with respect to her assault and battery claim. Plaintiff fails to note that she was ...


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