# Ortiz v. Hasper

> District Court, E.D. New York · January 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10307359

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

RAYMOND MARTINEZ, as Administrator of
the Estate of Robert Ortiz,

Plaintiff, MEMORANDUM & ORDER
15-CV-5724 (EK)(LB)

-against-

POLICE OFFICER JAMES HASPER,
Individually and in his Official
Capacity, and the CITY OF NEW YORK,
Defendants.

------------------------------------x
ERIC KOMITEE, United States District Judge:
In an order dated November 17, 2021, familiarity with
which is assumed here, this Court entered summary judgment on
behalf of defendant Officer James Hasper and directed that the
case be dismissed. Plaintiff-Administrator Raymond Martinez now
moves to amend the judgment pursuant to Fed R. Civ. P. 59(e) or,
in the alternative, for relief from a final order under Rule
60(b). See Pl.’s Motion to Amend Order, ECF No. 130. The
amendment that Martinez seeks would address what he describes as
his respondeat superior claim against the City of New York in
the fifth cause of action of the operative complaint.
For the reasons stated below, I conclude that I have
jurisdiction to consider the motion, despite Martinez’s having
filed a notice of appeal. In addition, despite the fact that
the fifth cause of action does not explicitly name the City as a
defendant, I grant the motion, construe the complaint as
alleging a respondeat superior claim against the City, and amend
the order to dismiss that claim as well.
I. Jurisdiction

I must first decide whether I have jurisdiction to
decide Plaintiff’s motion, given that he filed it after his
notice of appeal. See ECF No. 129 (Notice of Appeal filed on
December 2, 2021); ECF No. 130 (Rule 59(e) and 60(b) motion
filed on December 12). Following those filings, the Second
Circuit stayed the appeal pending resolution of the motion. See
Initial Notice of Stay of Appeal, Second Circuit, No. 21-CV-
2975, ECF No. 16.
“The filing of a notice of appeal is an event of
jurisdictional significance — it confers jurisdiction on the
court of appeals and divests the district court of its control

over those aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).
“However, if a party files a timely motion to alter or amend
the judgment, see Fed. R. App. P. 4(a)(4)(A)(iv), and files
a notice of appeal before the district court disposes of that
motion, then the notice of appeal does not become effective
until the order disposing of that motion is entered, see Fed.
R. App. P. 4(a)(4)(B)(i).” Biehner v. City of New York, No. 19-
CV-9646, 2021 WL 5827536 (S.D.N.Y. December 8, 2021).
District courts in the Southern and Eastern Districts
of New York have generally concluded that they have jurisdiction
to resolve timely filed motions under Rule 59(e) and Rule 60(b)

even where a notice of appeal is filed before one of those
motions. See e.g., Straw v. Dentons US LLP, No. 20-CV-3312,
2020 WL 3962067, at *2 (S.D.N.Y. July 11, 2020); Azkour v.
Little Rest Twelve, No. 10-CV-4132, 2015 WL 1413620, at *1
(S.D.N.Y. March 23, 2015); Smith v. City of New York, No. 12-CV-
8131, 2014 WL 2575778, at *1 n.1 (S.D.N.Y. June 9, 2014);
Goldstein v. Hulihan, No. 09-CV-6824, 2012 WL 1438259, at *4-5
(S.D.N.Y. April 6, 2012), report and recommendation adopted,
2012 WL 1438251 (S.D.N.Y. April 25, 2012); Guadagni v. New York
City Transit Authority, No. 08-CV-3163, 2009 WL 750224, at *2
n.3 (E.D.N.Y. March 19, 2009).
Second Circuit precedent supports this conclusion,

too, despite the fact that the closest appellate cases do not
involve this precise sequence. See Hodge ex rel. Skiff v.
Hodge, 269 F.3d 155, 157 (2d Cir. 2001) (quoting Fed. R. App. P.
4(a)(4)(b)(i)) (“Where, as here, the notice of appeal is filed
prior to the disposition of a postjudgment motion, the notice of
appeal ‘becomes effective’ only upon the district court's
disposition of all timely postjudgment motions.”); id. at 157
n.4 (“We pause to remind the clerks of the district courts that
the filing of a notice of appeal does not divest the district
court of jurisdiction to decide any of the postjudgment motions
listed in Fed. R. App. P. 4(a)(4)(A), if timely filed. On the
contrary, the notice of appeal must be held in abeyance by this

Court until all such motions are disposed of, at which point the
notice of appeal becomes effective.”); see also Lowrance v.
Achtyl, 20 F.3d 529, 533 (2d Cir. 1994) (a “notice of appeal
[becomes] a nullity” upon the timely filing of a Rule 4(a)(4)(A)
motion).
I agree with this conclusion because of the text of
Fed. R. App. P. 4(a)(4). It states, in relevant part, that
“[i]f a party files a notice of appeal after the court announces
or enters a judgment — but before it disposes of any” Rule 59 or
60 motion, “the notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing of the last
such remaining motion is entered.” Fed. R. App. P. 4(a)(4).

The application of that rule to the sequence here dictates that
I have the authority to resolve this motion on the merits. See
also id. R.4 cmt. (1993) (amended 2017) (indicating that a
notice of appeal “filed before the filing of one of the
specified motions [listed in Rule 4(a)(4)(A)] but before
disposition of the motion is, in effect, suspended until the
motion is disposed of, whereupon the previously filed notice
effectively places jurisdiction in the court of appeals”). The
Second Circuit implicitly acknowledged as much via its stay of
Martinez’s appeal.1
II. Motion to Amend
I turn now to the substance of Plaintiff’s motion.

Martinez asks the court to amend its order and judgment to
dispose of his respondeat superior claim against the City of New
York for the alleged battery committed by Officer Hasper against
Ortiz, or in the alternative, to allow the case to proceed to
trial on that claim.
The basis for Martinez’s motion is that Plaintiff
believed (incorrectly) that the City of New York was named as a
defendant in Plaintiff’s fifth cause of action (for battery
under New York state law) in the amended complaint. Plaintiff
now acknowledges that he did not actually name the City in that
claim. See Pl.’s Mem. Law in Support of R. 59/60 Motion at 3,
ECF No. 130-11 (plaintiff intended “to seek recovery against the

City on a respondeat superior theory . . . . However, the
heading of the battery claim [in the amended complaint]
mistakenly omitted the City as a defendant.”). Indeed, the

1 There is an alternative path forward as well. In Darnell v. Piniero,
849 F.3d 17, 28 n.7 (2d Cir. 2017), the Second Circuit suggested that a
district court could avoid the issue altogether by issuing an “indicative
ruling” under Fed. R. Civ P. 62.1(a)(2). Should the Court of Appeals decide
that I lack jurisdiction to decide the motion, this order shall constitute an
indicative ruling under Rule 62.1.
amended complaint made no mention of respondeat superior
liability, at least by name. Am. Compl. at 10, ECF No. 58.
Plaintiff says that the reference to Hasper “acting within the
scope of his employment” at ¶ 80 should have been sufficient.
Pl.’s Mem. Law in Support of R. 59/60 Motion at 5-6 (arguing

that the amended complaint’s reference to the scope of Hasper’s
employment “clearly indicated an intent to seek recovery against
the city on a respondeat superior theory, since otherwise the
allegation was pointless”).
Despite the omission, Martinez correctly points out
that the Court inquired into this issue at oral argument on July
21, 2021. See Transcript of Oral Argument held on July 21, 2021
at 2-6, ECF No. 121 (court asks how a finding of qualified
immunity on Hasper’s behalf would affect the City’s liability);
see also City’s Letter dated September 2, 2021, ECF No. 122.
Given the confusion, the most efficient course is for the Court
to amend the order to address the City’s potential liability for

the battery claim.
In that vein, I note that settled case law guided my
dismissal of the state law battery claim against Hasper in light
of the finding that Hasper is protected by qualified immunity.
And no further briefing opportunity was requested or required,
following that dismissal, on the respondeat superior issue. As
Plaintiff admits in his Rule 59 motion papers, both parties had
ample opportunity — and indeed availed themselves of that
opportunity — to argue and brief the respondeat superior claim
against the City at and after oral argument.* All relevant
evidence is already in the summary judgment record and the
question of whether the respondeat superior claim survives is a
purely legal question. So I may grant summary judgment to the
City even though the City did not expressly move for summary
judgment. See Celotex Corp., 477 U.S. at 326; ING Bank N.V. v.
M/V Temara, IMO No. 9333929, 892 F.3d 511, 523-24 (2d Cir.
2018); Fed. R. Civ. P. 56(f).
Since the underlying claim of battery was dismissed,
the corresponding respondeat superior claim must be dismissed as
well. See Kass v. City of New York, 864 F.3d 200, 213-14 (2d
Cir. 2017) (dismissing state law vicarious liability claim
against the City after granting qualified immunity on federal
false arrest claim and dismissing state law false arrest claim);
Demoret v. Zegarelli, 451 F.3d 140, 153-54 (2d Cir. 2006)
(observing that municipality was entitled to summary judgment on
state law Title VII discrimination claim based solely on the
acts of employees, after finding employees were entitled to

2 See Transcript of Oral Argument held on July 21, 2021 at 2-6, ECF No.
121 (court asks how a finding of qualified immunity on Hasper’s behalf would
affect the City’s liability); see also City’s Letter dated September 2, 2021,
ECF No. 122 (briefing the issue); Pl. Mem. In Support of Rule 59/60 Motion at
6, ECF No. 130-11 (citing Pl. Supplemental Briefing at 15-17, ECF No. 126);
Pl. Reply in Support of Rule 59/60 Motion at 5, ECF No. 132 (“Plaintiff
briefed this issue on summary judgment, and he rests on that briefing.”).

qualified immunity); Harsco v. Segui, 91 F.3d 337, 349 (2d Cir.
1996) (dismissing respondeat superior claims where no underlying
theory of liability survived); Edwards by Edwards v. City of New
York, No. 15-CV-3637, 2019 WL 3456840, at *9 (S.D.N.Y. 2019)
(dismissing respondeat superior claim against the City after

granting qualified immunity to employees on underlying assault
and battery claims); Adams v. City of New York, 226 F. Supp. 3d
261, 268 (S.D.N.Y. 2016) (“[B]ecause the officers are entitled
to qualified immunity, Adams’ respondeat theory of liability as
to the City also fails, as it is derivative of the claims
against the officers.”); Hargroves v. City of New York, No. 03-
CV-1668, 2014 WL 1271024, at *4 (E.D.N.Y. March 26, 2014)
(“There being no underlying offense for which the City could be
held vicariously liable, the same claim must be dismissed as
against the City.”).
III. Conclusion
For the reasons stated above, the motion is granted.
The Court will issue an amended order that (1) amends the
caption to reflect the City’s status as a defendant in this case
and (2) dismisses Plaintiff’s respondeat superior claim against

the City. The Clerk of Court is respectfully requested to send
a copy of this order and the amended memorandum and order
granting summary judgment in favor of the Defendants to the
United States Court of Appeals for the Second Circuit.

SO ORDERED.

__/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge

Dated: January 12, 2022
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307359. Public record. Not legal advice.