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Abdelaziz v. City Of New York

United States District Court, E.D. New York

March 29, 2018

GAMAL ABDELAZIZ, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.

          BRETT G. KLEIN PLLC ATTORNEY FOR PLAINTIFF

          LEVENTHAL LAW GROUP, PC BY JASON LEVENTHAL ATTORNEY FOR PLAINTIFF

          NEW YORK CITY LAW DEPARTMENT BY BEN KURUVILLA ATTORNEYS FOR DEFENDANT CITY OF NEW YORK

          WORTH, LONGOWORTH AND LONDON LLP BY: DOUGLAS LABARBERA ATTORNEY FOR MILKO MEJIA

          MEMORANDUM AND ORDER

          JOHNSON, UNITED STATES DISTRICT JUDGE

         Presently before the Court are two motions for summary judgment -- one filed by defendant City of New York (the “City”), and the other by New York City Police Officer Melko Mejia (“Mejia”). Based on the submission of the parties, and for the reasons stated below, the City's motion is DENIED and Mejia's motion is DENIED.

         BACKGROUND

         The facts and circumstances alleged by plaintiff Gamal Abdelaziz (“Plaintiff or “Abdelaziz”) in this action are largely set forth in the Court's Memorandum and Order of April 14, 2016, denying the City's and Mejia's motion to dismiss and are incorporated by reference herein. However, because the parties have since engaged in and completed discovery, the original facts warrant some repetition and the following supplementation.

         On September 24, 2012, Mejia, a then-off-duty police officer employed by the New York City Police Department (“NYPD”), was involved in a traffic incident with Abdelaziz, a United States citizen, while driving in the parking lot of a supermarket in Queens, New York. Mejia was in plain clothes and accompanied in his car by his then-five year old son. Mejia made a left turn, attempting to exit the parking lot, whereupon Plaintiff (who was also operating a motor vehicle in the supermarket's lot), moved his vehicle to the right. The two cars passed each other with very little distance between them. Words were exchanged.

         There is a dispute as to where each man drove his car at this point. First, the Court notes it is not clear if the cars remained facing opposite direction. Next, Mejia claims that he “proceeded to exit and go home.” Plaintiff claims Mejia did not seek to exit the premises but rather stopped his car “ahead of Plaintiff's vehicle, ” exited and approached Plaintiff in order to continue their row. Conversely, Mejia claims that Plaintiff was first to exit his car, after first tailgailing Mejia (which would presumably require Plaintiff to have made a U-turn with his vehicle). Regardless, each party alleged that the other engaged in hostile language in front of Mejia's child, including, inter alia, Plaintiff allegedly calling Mejia an “asshole, ” either before or after Mejia allegedly called Plaintiff an “asshole.” It was at this point that the incident escalated from words to blows.

         Unsurprisingly, the parties' respective version of events cannot be reconciled. Mejia either did or did not do the following: display his shield; initially represent himself to be a police officer; ask Plaintiff for his license, registration and keys; intentionally kick Plaintiff in the testicles; punch Plaintiff to the point of unconsciousness thereafter; detain or restrain Plaintiff; prevent Plaintiff from leaving; call 911 referring to Plaintiff as a “perpetrator” who was trying to escape; and refuse to provide Plaintiff with his shield number, adding, to wit: “I'm not going to give you nothing, you piece of shit, go fucking back home, you piece of fucking terrorist motherfucker.” Likewise, Plaintiff either did or did not: strike Mejia in the face; threaten to put his head through Mejia's car window; pose a danger to Mejia's minor son (seated in the car); and drive erratically. The parties do not even agree on which one of them exited their vehicles first. Ultimately, a host of questions of fact exist that, when resolved, would determine who was the first aggressor in both the oral and physical phases of this altercation.

         What is not in dispute is that Mejia called 911, indicated that he was an officer in distress, either asked or told Plaintiff not to leave the scene, struck Plaintiff several times in the head and testicles and was himself the basis for Plaintiff's arrest. Indeed, Plaintiff was arrested and charged with assault, endangering the welfare of a child and harassment. According to the criminal complaint, Plaintiff was the first aggressor, who punched Mejia in the face after pounding on Mejia's door window. Plaintiff ultimately pleaded guilty to disorderly conduct on January 29, 2013. Mejia was transported to the hospital to treatment for abrasions that he claims to have suffered at the hands of Plaintiff who he claims was the first to strike. And although the arrest report states that Mejia alleged “substantial pain, ” he testified in his deposition that, at the hospital, he was prescribed “some kind of aspirin, either Motrin or Advil or something like that.”

         DISCUSSION

         1. Summary ...


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