United States District Court, S.D. New York
MARY M. TARDIF, Plaintiff
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
M. WOOD UNITED STATES DISTRICT JUDGE
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.
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.
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).
STANDARD GOVERNING A MOTION FOR RECONSIDERATION
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.)).
Plaintiffs Motion for Reconsideration
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.
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,
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).
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