The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PATRICIA RANTA, NICHOLAS
RANTA, and PRISCILLA RANTA,
Plaintiffs,
MEMORANDUM AND ORDER
-against- Case No. 14-CV-3794 (FB) (LB)
THE CITY OF NEW YORK, NEW
YORK CITY POLICE DEPARTMENT,
LOUIS SCARCELLA and STEPHEN
CHMIL, individually and as members of
the New York City Police Department,
and JOHN AND JANE DOE POLICE
OFFICERS #1-15,
Defendants.
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Appearances:
For the Plaintiffs: For Defendants New York City and
PETER C. DEE Stephen Chmil:
Mavronicolas & Dee LLP MARK D. ZUCKERMAN
228 East 45th Street, 6th Floor Assistant Corporation Counsel of the
New York, New York 10017 City of New York
100 Church Street
New York, New York 10007
For Defendant Louis Scarcella:
RICHARD E. SIGNORELLI
BRYAN HA
Law Office of Richard E. Signorelli
52 Duane Street, 7th Floor
New York, New York 10007
BLOCK, Senior District Judge:
David Ranta spent twenty-three years in prison for a murder he did not
commit. See Frances Robles, Man Framed by Detective Will Get $6.4 Million
From New York City After Serving 23 Years for Murder, N.Y. Times, Feb. 20, 2014,
at A19. Wrongful convictions often result in civil litigation, see, e.g., Collins v.
City of New York, 923 F. Supp. 2d 462 (E.D.N.Y. 2013), but David settled with the
City of New York before filing suit. See id. His ex-wife and children, on the
other hand, were not privy to the settlement negotiations and filed this action. The
defendants move to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). For the following reasons, the motion is granted in part and
denied in part.
I
The following facts are taken from the allegations of the amended complaint.
For purposes of this motion, they are accepted as true, with all inferences drawn in
the plaintiff’s favor. See Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015).
On February 8, 1990, Rabbi Chaskel Werzberger was shot and killed as his
assailant fled a botched robbery attempt. Six months later, New York Police
Department Detectives Louis Scarcella and Stephen Chmil arrested David Ranta.
David was convicted and sentenced to 37.5 years’ imprisonment.1
Many years later it came to light that David was framed. One prosecution
1Because they share a last name, the Court will refer to David and the
plaintiffs by their first names. No disrespect is intended.
witness revealed that the detectives had instructed him to identify Ranta in a lineup.
Two others admitted they had perjured themselves on the stand in the hopes of
cutting favorable deals for their own misdeeds. In addition, the detectives failed to
pursue other leads and produced a confession that Ranta denied giving.
After defending the conviction for two decades, the Kings County District
Attorney Charles Hynes turned the case over to his Conviction Integrity Unit. A
yearlong investigation forced the office to concede the obvious and David was
released in 2013. A notice of claim against New York City inevitably followed
but, as noted, David’s claim was settled quickly and without the need for legal action.
David’s ex-wife, Patricia, and their children, Nicholas and Priscilla, also made
claims against the City. But their claims were not settled and led to the present
lawsuit, which has had a somewhat complex procedural history.
The plaintiffs initially based their claims on 42 U.S.C. § 1983. They argued
that, by framing David, Scarcella and Chmil had deprived them of their Fourteenth
Amendment rights to (1) familial association and (2) access to courts. In addition,
they argued that the New York City Police Department and the City of New York
were liable for those deprivations under Monell v. Department of Social Services,
436 U.S. 658 (1978).
The case was originally assigned to Judge Townes, who dismissed the familial
association claim on the ground that uncertainty in the law governing such a claim
entitled the detectives to qualified immunity. See Ranta v. City of New York, 2015
WL 5821658, at *7 (E.D.N.Y. Sept. 30, 2015). With respect to the access to courts
claim, she gave the parties leave to submit additional factual material in anticipation
of a motion for summary judgment. See id. at *9. Finally, she dismissed the New
York City Police Department as a non-suable entity, see id., and deferred
consideration of the Monell claim, see id. at *10.
Following Judge Townes’ death, the case was reassigned to me to deal with
the access to courts claim. As Judge Townes had previously explained, the
plaintiffs claimed that Scarcella and Chmil had “[p]revented them from timely
asserting state-law claims including, but not limited to, loss of consortium and
marital benefits (Patricia); loss of consortium (Nicholas and Priscilla); and
intentional or negligent infliction of emotional and mental pain, suffering, and
distress (Patricia, Nicholas, Priscilla).” Ranta, 2015 WL 5821658, at *7.
Addressing the claim on summary judgment, I held that the plaintiffs had not been
deprived of access to courts because their state-law claims were still viable, the
defendants having conceded that the claims did not accrue until David’s conviction
was vacated. See Ranta v. City of New York, 2018 WL 3127154, at *2 (E.D.N.Y.
June 26, 2018). Accordingly, I dismissed the access to courts claim, see id.at *3,
along with the Monell claim, see id. (“In the absence of a viable § 1983 claim
against Scarcella and Chmil, the Monell claim against the City must be dismissed
as well.”). However, I allowed the plaintiffs leave to amend to allege their state-
law claims directly and stated that I would exercise supplemental jurisdiction over
those claims. See id. I then directed the plaintiffs to file and serve an amended
complaint so that the defendants could decide whether to pursue a motion to
dismiss. See Ranta v. City of New York, 2019 WL 2568725, at *2 (E.D.N.Y. June
20, 2019). The plaintiffs filed their amended complaint and the defendants filed
this motion to dismiss, thus bringing the matter back before the Court.
II
The amended complaint asserts claims for (A) intentional infliction of
emotional distress (“IIED”), (B) negligent infliction of emotional distress
(“NEID”), (C) loss of consortium, and (D) negligent hiring, training and
supervision. The Court addresses them in turn.
A. IIED
To make out a claim of IIED, a plaintiff must allege four elements: “(i)
extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal connection between
the conduct and injury; and (iv) severe emotional distress.” Howell v. N.Y. Post
Co., 81 N.Y.2d 115, 121 (1993). The defendants wisely do not argue that
intentionally framing an innocent man for murder is anything but “utterly
intolerable in a civilized community.” Id. at 122 (quoting Murphy v. Am. Home
Prods. Corp., 58 N.Y.2d 293, 303 (1983)). They do, however, argue that the
claim fails for a number of other reasons.
The Court need address only one of those reasons. Clearly, the detectives’
conduct, as alleged in the amended complaint, was intentional; they did not
accidentally frame David. But in addition to being intentional in that sense, the
conduct allegedly causing the emotional distress “must be intentionally directed at
the plaintiff.” Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985). There
is perhaps a reasonable inference that the detectives acted with the specific intent
to cause David emotional distress, although it would arguably be just as reasonable
to infer that the intent behind their actions was to secure a conviction at all costs.
But there is no plausible view of the facts alleged that the detectives acted
specifically to cause emotional distress to Ranta’s family. In other words, there
was no conduct intentionally directed at the plaintiffs.
B. NIED
New York recognizes three variants of negligent infliction of emotional
distress. First, “[a] plaintiff may recover for a purely emotional injury under the
‘bystander’ theory when: (1) she is threatened with physical harm as a result of
defendant’s negligence; and (2) consequently she suffers emotional injury from
witnessing the death or serious bodily injury of a member of her immediate
family.” Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996) (citing
Bovsun v. Sanperi, 61 N.Y.2d 219, 230-31 (1984)). Second, “[u]nder the ‘direct
duty’ theory a plaintiff has a cause of action for negligent infliction of emotional
distress if she suffers an emotional injury from defendant’s breach of a duty which
unreasonably endangered her own physical safety.” Id. (citing Kennedy v.
McKesson Co., 58 N.Y.2d 500, 504 (1983)). Plaintiffs concede that these two
theories are inapplicable here.
Instead, they rely on the third variant. In Johnson v. State, 37 N.Y.2d 378
(1975), the two plaintiffs were the daughter and sister, respectively, of a hospital
patient. The hospital negligently—and mistakenly—informed the plaintiffs that
the patient had died. See id. at 380. Though recognizing that “courts have been
reluctant to permit recovery for negligently caused psychological trauma, with
ensuing emotional harm alone,” the New York Court of Appeals endorsed the view
that, in some cases, “an especial likelihood of genuine and serious mental distress,
arising from the special circumstances, . . . serves as a guarantee that the claim is
not spurious.” Id. at 382 (internal quotation marks omitted). It concluded that
negligently informing someone of the death of a close family member was such a
case. See id.
A key issue with this third variant of liability is its uncertain scope. The
Court of Appeals dealt with a duty to provide accurate information to family
members; it also favorably cited cases imposing a duty to use due care in handling
a corpse to protect “the personal feelings of the survivors.” Id. But citing
Prosser on Torts, it noted that “[t]here may perhaps be other such cases” justifying
the cause of action. See id. Indeed, in Baker v. Dorfman, 239 F.3d 415 (2d Cir.
2000), the Second Circuit “predict[ed] that the New York Court of Appeals would
hold that a cause of action lies for negligent infliction of emotional distress in the
case of a negligent positive result on an HIV test.” Id. at 422.
Similarly, the Court predicts that the Court of Appeals would hold that the
consequences of a wrongful conviction on spouses and children would present the
“especial likelihood of genuine and serious mental distress,” Johnson, 37 N.Y.2d at
382, necessary to support a claim for NIED.2 The reasoning in Johnson was
nothing more or less than an application of what has been the cornerstone of New
York tort law for nearly a century:
While for one to be held liable in negligence he need not foresee
novel or extraordinary consequences, it is enough that he be aware of
the risk of danger. The consequential funeral expenditures and the
serious psychological impact on claimant of a false message
informing her of the death of her mother, were all within the “orbit of
the danger” and therefore within the “orbit of the duty” for the breach
of which a wrongdoer may be held liable.
2The final authority on the matter is, of course, the New York Court of
Appeals. Unfortunately, however, a district court cannot certify a question of
state law to the Court of Appeals. See N.Y. Comp. Codes R. & Regs. tit. 22,
§ 500.27 (providing that such questions may be certified by “the Supreme Court of
the United States, any United States Court of Appeals, or a court of last resort of
any other state”).
Id. at 382-83 (quoting Palsgraf v. Long Is. R.R., 248 N.Y. 339, 343 (1928)).
Railroading an innocent man undoubtedly has a psychological effect on his close
family members that is just as predictable and foreseeable as the effect of
erroneously sending news of his death.
Defendants object that plaintiffs allege only a “free-floating duty to society.”
Defs.’ Mem. of Law 16 (internal quotation marks and citation omitted). But this
is not a claim by a member of the general public to enforce a duty to obey the law;
it is a claim that the wrongful conviction had a concrete and particular impact on
plaintiffs because of their relationship to him.
Defendants further object because the complaint alleges only intentional
conduct. It is certainly true that David could not sue for NIED because the
detectives’ conduct was, with respect to him, intentional rather than negligent. At
the same time, however, it evinced an utter disregard for the effect the conduct
might have on his family. That is the very definition of negligence and the two
are not mutually exclusive; someone throwing a misguided punch can be liable for
negligence in hitting a bystander even if he intended to hit someone else.
Similarly, defendants argue that the injury to David’s family was not direct,
but only consequential. The New York Court of Appeals has said that negligence
resulting in only emotional harm can be actionable “when the mental injury is
‘a direct, rather than a consequential, result of the breach.’” Ornstein v. N.Y.C.
Health & Hosps. Corp., 10 N.Y.3d 1, 6 (2008) (quoting Kennedy, 58 N.Y.2d at
506)). While David was certainly the direct victim of the detectives’ alleged
misconduct, the psychological harm to his family was still a direct injury, in that it
flowed immediately, as plaintiffs allege, from the wrongful conviction without any
intervening causes.
Defendants next argue that, absent special circumstances, the necessary
guarantee of genuineness requires a threat to the plaintiff’s physical safety. That
argument is circular. The “special circumstances” variant of NIED exists
precisely to cover situations not otherwise covered by the “bystander” and “direct
duty” variants, which do rely on a threat of physical harm. The limiting factor for
the “special circumstances” variant is not whether the defendant’s conduct
threatens the plaintiff’s physical safety, but whether it foreseeably has a genuine,
albeit solely emotional, impact. As explained above, the Court concludes that
framing David had such an impact on his family.
Finally, defendants argue that NIED does not supplant traditional tort
claims, such as loss of consortium. Leaving aside the fact the defendants have (as
discussed in the following section) argued that plaintiffs have no such claims, their
argument is premature. If the matter proceeds to trial, the Court will ensure that
the jury understands that it cannot award the plaintiffs a double recovery—
assuming that the damages for NIED overlap with the damages for loss of
consortium. In the meantime, the possibility of liability on one basis is not a
ground for dismissing another.
C. Loss of Consortium
1. Patricia
The complaint alleges that Patricia was married to David at the time of his
arrest, but that she was “granted a divorce on the ground of [David’s]
incarceration” some 15 years later. Defendants point out, however, that Patricia
has acknowledged that she and David were already separated at the time of his
arrest. They argue that this dooms her claim for loss of consortium in light of
caselaw holding that separation cuts off a claim for loss of consortium “in the
absence of any testimony regarding the likelihood of a reconciliation.” Dooley v.
Skodnek, 529 N.Y.S.2d 569, 571 (2d Dep’t 1988).
Defendants’ argument ignores the procedural posture of this case. Patricia
has alleged that she and David were married at the time of his arrest, and she is
entitled to the inference that, despite the separation, the possibility of reconciliation
remained. Indeed, she alleges that their eventual divorce was the result of David’s
incarceration.
A properly instructed jury will understand that “once a marriage terminates,
whether legally or in fact, and there is no reasonable likelihood of reconciliation,
the very elements upon which a loss of consortium claim is predicated are no
longer present.” Carr v. French-Am. Banking Corp., 1991 WL 33291, at *1
(S.D.N.Y. Mar. 6, 1991). A jury might conclude that the Rantas’ marriage was, in
fact, over at the time of David’s arrest, or it might conclude that there was a
possibility of reconciliation until the detectives’ conduct intervened. The Court
cannot answer that question on a motion to dismiss.
2. Nicholas and Priscilla
With respect to Nicholas and Priscilla, New York does not recognize a cause
of action for loss of parental consortium. See De Angelis v. Lutheran Med. Ctr.,
58 N.Y.2d 1053, 1055 (1983). The plaintiffs argue that the reasons for the rule
are no longer persuasive, but the Court’s role is to “give the fullest weight to
pronouncements of the state’s highest court.” Travelers Ins. Co. v. Carpenter,
411 F.3d 323, 329 (2d Cir. 2005) (quoting Maska U.S., Inc. v. Kansa Gen. Ins. Co.,
198 F.3d 74, 78 (2d Cir. 1999)). It has no warrant to revisit the wisdom of those
pronouncements.
D. Negligent Hiring
Finally, plaintiffs allege in a single paragraph that the City is liable for its
“intentional, deliberately indifferent, careless, reckless, and/or negligent failure to
adequately hire, train, supervise, and discipline its agents, servants and/or
employees employed by the NYPD with regard to their aforementioned duties, and
for negligent retention of same.” Am. Compl. ¶ 102. Their opposition to the
motion to dismiss does little to blouse out this conclusory allegation, except to say
that the detectives’ misbehavior was widespread.
“To maintain a claim against a municipal employer for the negligent hiring,
training, and retention of a tortfeasor under New York law, a plaintiff must show
that the employee acted outside the scope of her employment.” Velez v. City of
New York, 730 F.3d 128, 136-37 (2d Cir. 2013). “If the employee acted within the
scope of her employment, the employer and the employee’s supervisors may be
held liable for the employee’s negligence only under a theory of respondeat
superior.” Id. at 137.
Surprisingly, plaintiffs take the position that the detectives’ “campaign of
deception” was beyond the scope of their employment. Pls.’ Mem. of Law 9.
Defendants argue that plaintiffs have offered no allegations to support that
conclusion. That, too, is surprising in that it implies that the detectives were
acting within the scope of their employment, which would result in vicarious
liability for the City.
As with David and Patricia’s martial relationship, the Court concludes that it
is premature to decide whether the detectives were acting within the scope of their
employment based solely on the complaint and the parties’ perfunctory arguments.
With a more developed factual record and more thorough briefing, the Court can
perhaps decide the issue as a matter of law on summary judgment; if not, it can
present the competing theories to a properly instructed jury.
III
For the foregoing reasons, the motion to dismiss is granted in part and
denied in part. The claims for IIED are dismissed with prejudice, as are Nicholas
and Priscilla’s claims for loss of consortium. The claims for NIED, Patricia’s
claim for loss of consortium, and the claim for negligent hiring and retention shall
proceed.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 26, 2020