Ortiz v. Hasper

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------x

RAYMOND MARTINEZ, as Administrator of

the Estate of Robert Ortiz,

Plaintiff, AMENDED1

MEMORANDUM & ORDER

-against- 15-CV-5724(EK)(LB)

POLICE OFFICER JAMES HASPER,

Individually and in his Official

Capacity, and the CITY of NEW YORK,

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

Decedent Robert Ortiz, through his administrator,

brings claims against NYPD officer James Hasper under 42 U.S.C.

§ 1983 and state law for battery.2 His claims arise from an

incident in which officer Hasper shot Ortiz after Ortiz led

police on a car chase through Brooklyn and, after finding

himself hemmed in on a crowded street, rammed a police car in an

effort to continue his flight. Defendant Hasper moves for

summary judgment on these claims. For the reasons set out

1 This order was amended on January 12, 2022, in conjunction with the

grant of Plaintiff’s motion to amend the judgment under Rule 59. The amended

order includes the City of New York in the caption to reflect its status as a

defendant. The amended order also dismisses Plaintiff’s respondeat superior

claim against the City.

2 The amended complaint also asserted claims for malicious prosecution,

denial of the right to a fair trial, and abuse of process against the City of

New York and several other NYPD officers who were present during the

shooting. See generally Amended Complaint, ECF No. 58. Plaintiff

voluntarily dismissed these claims in July 2020. See Order dated July 14,

2020.

below, Hasper’s motion is granted and Plaintiff’s respondeat

superior claim against the City is dismissed.

I. Background

The following facts are drawn from the parties’ Local

Rule 56.1 statements, deposition transcripts, video footage of

the incident, and other documentary materials the parties

submitted.

The events leading up to the shooting are largely

undisputed. Ortiz was driving while intoxicated, having

consumed “a pint of E&J brandy” and smoked a “dime bag” of

marijuana.3 Officers began pursuing Ortiz after he proceeded

straight through an intersection from the left-turn-only lane,

cutting off and side-swiping a van in the process, on Rockaway

Parkway in Brooklyn. Seeing the officers, Ortiz sped up, drove

down a side street, struck a fire hydrant, re-emerged on

Rockaway Parkway, and continued driving until he encountered

traffic on a busy stretch of that street. As Ortiz approached

the traffic, Officer Hasper, who was in an unmarked vehicle in

the vicinity, joined the pursuit.

The moments leading up to and including the shooting

were captured on video by a storefront security camera on

Rockaway Parkway, and this decision is based in significant part

3 Plaintiff contends that his intoxication is “irrelevant” but does not

contest the accuracy of the contention. See Plaintiff’s 56.1 Statement ¶¶ 4-

8.

on my review of that video. See, e.g., City of Tahlequah v.

Bond, 595 U.S. ----, slip op. at 1-3 (2021) (reversing Court of

Appeals and reinstating district court’s grant of summary

judgment in excessive-force case, based in significant part on

body-camera video); Scott v. Harris, 550 U.S. 372 (2007)

(reversing denial of summary judgment in a fleeing-motorist case

where video recording “clearly contradicts the version of the

story told by respondent”).

The video recording is two minutes and one second

long. It shows Ortiz’s 1995 Chevy Suburban driving down

Rockaway Parkway, which at that point is a two-lane street with

parked cars on the side of both traffic lanes. Exhibit L –

Surveillance footage (“video recording”), ECF No. 115-12. A

number of pedestrians are visible on the near sidewalk and in a

crosswalk in the background. Before Ortiz’s vehicle enters the

frame, at approximately the thirteen-second mark, we see a woman

run into the foreground of the video, hurriedly pushing a child

off the sidewalk and into a store. Ortiz’s black Suburban

appears two or three seconds later, traveling at a higher rate

of speed than the cars that preceded it. Though no lane

markings are visible, it is clear that Ortiz is driving at least

partially in the path of oncoming traffic, as he navigates

around a double-parked car on his right. Officers are running

along the passenger side of the Suburban; at the same time,

numerous pedestrians run for cover.

Around the eighteen-second mark, Ortiz comes to a stop

just short of a car stopped in front of him. A police car pulls

up and parks behind him. As more officers approach, Ortiz

reverses the Suburban, which weighs more than two-and-a-half

tons,4 and crashes into the police car with enough force that the

police vehicle rocks (violently, at first) for more than five

full seconds. See Defendant’s 56.1 Statement, ¶¶ 23, ECF No.

112; video recording at 0:20-0:28. After hitting the police

car, the Suburban launches forward towards several police

officers. The SUV pauses momentarily, then accelerates forward

and hits the car in front of it hard, pushing it forward into

another vehicle. (The car Ortiz hit was driven by Carlene

Davis, a civilian who had her two-year old child with her.) See

Plaintiff’s 56.1 Statement, ¶ 21, 65-66, ECF No. 114.

From the video recording (which has no sound), it is

not possible to tell the precise moment when Hasper fired his

weapon. The parties have given varying accounts. At his 2017

criminal trial on charges of reckless endangerment and assault,

Ortiz testified that he “got shot as soon as [he] hit the cop

4 Edmunds, Used 1995 Chevrolet Suburban Specs & Features,

https://www.edmunds.com/chevrolet/suburban/1995/features-specs/ (last visited

Nov. 17, 2021) (listing “Curb Weight” of 5,587 pounds).

car behind [him].” Criminal Trial Transcript 797:11-13, ECF No.

111-3. At his deposition in this case, however, Ortiz testified

that he backed into the police car, put his car in drive, drove

forward, and stopped his vehicle because Ms. Davis’s car was in

the way, and then was shot. 56.1 ¶ 27. He stated that he

slumped over the wheel, and only then hit Ms. Davis’s car. 56.1

¶ 65. Ortiz also points to the deposition testimony of another

officer on the scene, P.O. Ramos, who testified that Ortiz’s

vehicle was not in motion when he was shot. See Def.’s 56.1

Statement ¶ 64. Hasper, for his part, maintains that he ordered

Ortiz to stop and exit the vehicle before discharging his

weapon, id. at ¶ 33-34, and that he fired “at some point after”

Ortiz backed into the police vehicle. Id. at ¶ 25.

Ortiz sustained serious injuries and was hospitalized

for thirteen days. He survived the shooting but died from

unrelated causes four years later. Pl.’s Mem. of Law in Opp. to

Def.’s Mot. for Summ. Judgment (“Pl.’s Opp. Br.”) at 1 n.1, ECF

No. 116.

II. Legal Standard

Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact” and

that she “is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A material fact is one that “can affect the

outcome under the applicable substantive law.” Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A genuine dispute is

one that can “reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

performing this analysis, the Court must resolve all ambiguities

and draw all inferences in favor of the non-moving party. Gallo

v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,

1223 (2d Cir. 1994). “If, in this generous light, a material

issue is found to exist, summary judgment is improper.”

Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,

160 (2d Cir. 1999).

The moving party may establish that there is no

genuine dispute “by showing that little or no evidence may be

found in support of the nonmoving party’s case.” Gallo, 22 F.3d

at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). If the moving party meets this burden, the non-moving

party “must come forward with specific facts showing that there

is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d

68, 73 (2d Cir. 1998). However, the non-moving party “must do

more than simply show that there is some metaphysical doubt as

to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011).5 If “no rational finder

5 Unless otherwise noted, when quoting judicial decisions this order

omits all alterations, citations, footnotes, and internal quotation marks.

of fact could find in favor of the nonmoving party because the

evidence to support its case is so slight, summary judgment must

be granted.” Id.

III. Discussion

Plaintiff brings claims for excessive force and

battery. I address excessive force, the sole federal claim,

first.

A. Excessive Force

A police officer’s application of force is excessive

“if it is objectively unreasonable in light of the facts and

circumstances confronting them, without regard to their

underlying intent or motivation.” Maxwell v. City of New York,

380 F.3d 106, 108 (2d Cir. 2004). The use of deadly force is

circumscribed by constitutional decisions dating back to

Tennessee v Garner, 471 U.S. 1, 3 (1985)). Under that decision

and its progeny, deadly force is permissible only when an

“officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.” Cowan ex rel. Cooper v. Breen, 352 F.3d

756, 764 (2d Cir. 2003) (citing Garner, 471 U.S. at 3); see also

Thevenin v. French, 850 F. App’x 32, 35 (2d Cir. 2021) (summary

order) (confirming that Cowan remains “clearly established law

in this Circuit”). The Second Circuit does not appear to have

defined the phrase “significant physical injury” with precision.6

In determining whether the use of force was

reasonable, courts consider “the officer’s knowledge of

circumstances immediately prior to and at the moment that he

made the split-second decision to employ deadly force.” Salim

v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996). Courts must view the

“reasonableness of a particular use of force . . . from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S.

386, 396 (1989).

B. Qualified Immunity

The excessive-force claim against Hasper, a police

officer, must be viewed through the lens of qualified immunity.

See City of Tahlequah, 595 U.S. ----; Rivas-Villegas v.

Cortesluna, 595 U.S. ----, slip op. at 2 (2021) (per curiam).

“The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

6 See, e.g., Hasper’s Supp. Letter at 9, ECF No. 125 (“[N]o [c]ourt has

specifically delineated the categories of injury that would constitute

‘serious physical injury,’ in this specific context.”); Pl.’s Supp. Letter at

21, ECF No. 126 (pointing to definitions under New York Penal Law and the

Model Penal Codes). However high the threshold is set, the assessment must

take into account both the severity of the potential harm the officer is

trying to prevent and also the probability that such harm will come to pass.

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When an

official asserts a qualified immunity defense, courts consider

whether “(1) the official violated a statutory or constitutional

right, and (2) . . . the right was ‘clearly established’ at the

time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d

162, 167 (2d Cir. 2016) (quoting Saucier v. Katz, 533 U.S. 194

(2001)). Qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law.” Doninger

v. Niehoff, 642 F.3d 334, 353 (2d Cir. 2011).

In excessive-force claims, the reasonableness inquiry

“overlap[s]” with the qualified-immunity analysis. Cowan, 352

F.3d at 764. The difference is that “the qualified immunity

inquiry goes on to ask whether any constitutional violation was

clearly established.” Jackson v. Tellado, 236 F. Supp. 3d 636,

661 (E.D.N.Y. 2017). A constitutional right is clearly

established “when it is “sufficiently clear that every

reasonable official would have understood that what he is doing

violates that right.” Rivas-Villegas, 595 U.S. ----, slip op.

at 2 (per curiam) (citing Mullenix v. Luna, 577 U. S. 7, 11

(2015); see also Jones v. Treubig, 963 F.3d 214, 224 (2d Cir.

2020) (right is clearly established when it would have been

“clear to a reasonable officer that his conduct was unlawful in

the situation he confronted”).

Courts “do not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v. Luna, 577

U.S. 7, 12 (2015). The inquiry “must be undertaken in light of

the specific context of the case, not as a broad general

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam). “[S]pecificity is especially important in the Fourth

Amendment context, where . . . it is sometimes difficult for an

officer to determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the officer

confronts.” Mullenix, 577 U. S., at 12. The analysis must turn

on the given case’s specific facts and circumstances, “including

the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U. S. 386, 396 (1989).

C. The Shooting

Applying the qualified-immunity standard to the danger

posed by Ortiz’s actions, it is far from clear that Hasper’s

split-second decision to use deadly force violated clearly

established law. Indeed, the weight of authority is to the

contrary: the Supreme Court and Second Circuit have, on multiple

occasions, afforded qualified immunity to an officer who

employed deadly force against a motorist who was driving

erratically in a crowded area in an effort to evade arrest.

These precedents preclude a determination that an “objectively

reasonable” officer would have known that Hasper’s action was

unlawful.

For instance, in O’Brien v. Barrows, 556 F. App’x 2

(2d Cir. 2014) (summary order), which predated Ortiz’s shooting,

the Second Circuit held that qualified immunity shielded a

police officer who shot a motorist, even though the motorist was

not near pedestrians and was driving away from the only police

officer in the vicinity. Adopting the district court’s

reasoning, the Second Circuit recognized that O’Brien had been

driving erratically, “back[ed] away” upon seeing police

cruisers, came within “five feet” of hitting an officer, and

then “took off” toward a “busy road.” O’Brien v. Barrows, No.

1:10-CV-173, 2013 WL 486655, at *7 (D. Vt. Feb. 7, 2013); see

also O’Brien, 556 F. App’x at 4 (affirming summary judgment

“[f]or substantially the reasons stated by the district court”).

In the Second Circuit’s view, “no clearly established law made

the unlawfulness of [the officer’s] conduct apparent.” O’Brien,

556 F. App’x at 4.

The same is true here. In light of O’Brien, it cannot

be said that “existing precedent . . . placed the statutory or

constitutional question beyond debate.” Mullenix, 577 U.S. at

12. In some ways, O’Brien posed less risk of bodily harm than

Ortiz did. Unlike O’Brien, Ortiz actually did strike a police

car. And Ortiz was driving erratically with officers,

pedestrians, and other vehicles mere feet from his vehicle. See

video recording at 0:16-0:25. O’Brien may have been traveling

at a higher speed, but Ortiz accelerated rapidly in the critical

moments.

Plaintiff points to a factual dispute over whether the

Suburban was stationary when Hasper pulled the trigger and

argues that this dispute precludes summary judgment. Pl.’s Opp.

Br. at 7 (“Since the parties have given conflicting testimony as

to whether or not the vehicle was stopped at the time of the

shooting, summary judgment must be denied.”). I view the facts

in the light most favorable to the Plaintiff, and therefore

presume that Hasper did indeed fire during the very brief moment

in which Ortiz came to a stop after hitting the police car,

shifting into drive, and pulling forward. That moment lasts

about one second or less, and the video simply bears no

indication that Ortiz would have remained stopped.7 Based on the

aggressive, evasive action he had taken merely seconds prior —

reversing and smashing into a police car — it was eminently

reasonable to expect that he would accelerate again.

7 Ortiz hits the police car behind him at the twenty-one second mark in

the video and Ms. Davis’s car in front at the twenty-four second mark. In

between, he comes to a standstill or near-standstill for mere instants.

In Plumhoff v. Rickard, 572 U.S. 765, 776 (2014), the

Supreme Court reversed the denial of qualified immunity to

police officers who used deadly force against a motorist who had

endeavored to flee but was at a “near standstill” at the time

the shooting occurred. As in City of Tahlequah, 595 U.S. ----,

and Rivas-Villegas, 595 U.S. ----, no Justice dissented. The

Court observed that the driver had, prior to stopping, posed a

“grave public safety risk” by his reckless driving. Plumhoff,

572 U.S. at 776. Even though he “came temporarily to a near

standstill” before the shooting, the police officers were

justified in using deadly force, the Court held, because the

circumstances suggested that the driver would resume his flight

and again pose a deadly threat to others. Id.

Plumhoff is notable because the Supreme Court held not

only that the officers were entitled to qualified immunity, but

that their actions actually comported with the Fourth Amendment

— that is, that no constitutional violation occurred, clearly

established or not.8 This Court need not go so far under the

8 The Court reached the constitutional question first in Plumhoff in

light of guidance previously expressed in Pearson, 555 U.S. at 236, and

Saucier, 533 U.S. at 201-02. In Pearson, the Court guided Courts of Appeal

to consider the value of deciding the underlying constitutional question

before the qualified immunity question. This would help “promote[] the

development of constitutional precedent,” especially “with respect to

questions that do not frequently arise in cases in which a qualified immunity

defense is unavailable.” Pearson, 555 U.S. at 236. That guidance does not

apply with as much force to district courts, generally speaking. See

Plumhoff, 572 U.S. at 774 (referring to the value of an “appellate court”

current circumstances. It suffices, instead, to say that this

factual scenario, even if distinguishable in some regards from

Plumhoff, is sufficiently overlapping that a reasonable officer

could not be expected to distinguish it with confidence.

Accordingly, the doctrine of qualified immunity applies to

Officer Hasper’s action.

Ortiz also attempts to resist summary judgment on the

basis that no police officers or pedestrians were standing

directly to the front or rear of the vehicle when he was shot.

Given that he was “boxed in” between vehicles, he argues, he

posed no threat. But the video shows Ortiz had space to

maneuver, and perhaps enough room to escape. A car was able to

pass him in the oncoming lane. And the video plainly shows

several officers within striking distance of Ortiz’s vehicle as

well as a crowd of pedestrians on the nearby sidewalk, as in the

screenshot9 below:

deciding the constitutional question first). Accordingly, I consider only

the qualified immunity question here.

9 This image is extracted from Plaintiff’s Exhibit L. The raw video

footage shows a wider angle, but the Court has zoomed in to the most relevant

portion of the screen (the top left) for ease of view.

re eee the

ie 4 ce] ee) ee te |

ra) : | □□ P

» | rs ry □

Aue Gs see ake

. -" en aed

i eed aed J ee “fi sys +

ae | foe

= — 4 - cs a

>t

i ae,

<4 att

a

Ld —_

=

na

«2 r..3

7 * “a

- 5 =

aa , 4 es - - as

ui 2 a i=

At the top left of the image is Ortiz’s SUV, just

moments after he hit the NYPD vehicle. An officer is just

between the marked NYPD car and Ortiz’s vehicle. Multiple

officers are beside Ortiz’s vehicle (all indicated by circles).

The video also clearly reveals (when played) that another

officer is near the front left corner of Ortiz’s vehicle (below

the “2” in 2014 in the video’s date stamp), though that officer

is rendered somewhat blurry in the still image above.

Pedestrians are present, too, both on the sidewalk and in or

around parked vehicles. Reviewing the video evidence, these

factors permit no genuine dispute here. Williams v. City of

Grosse Pointe Park, 496 F.3d 482, 484 (6th Cir. 2007) (granting

summary judgment on excessive-force claim where officers shot

15

fleeing motorist who was driving between police cars that had

boxed him in); Peguero v. City of New York, No. 12-CV-5184, 2015

WL 1208353, at *9 (S.D.N.Y. Mar. 16, 2015) (granting summary

judgment on excessive-force claim, even though the officer “was

not in front of the car” when he shot the fleeting motorist);

O’Brien, 2013 WL 486655, at *8 (“[R]egardless of whether [the

police officer] stood to the side of the Plaintiff’s car or

directly in front of it, the Plaintiff acknowledges accelerating

rapidly forward within five feet of the officer.”).

Ortiz cites several cases in which courts denied

summary judgment on excessive-force claims involving fleeing

motorists. None of these cases change the conclusion here.10 In

Cowan, the plaintiff adduced evidence that the police officer,

10 Ortiz also points to several cases from other circuits, but it is

unclear that out-of-circuit cases could serve to “clearly establish” the law

governing Hasper’s action. In one recent case, the Supreme Court wrote that

to be clearly established, a “rule must be settled law, which means it is

dictated by controlling authority or a robust consensus of cases of

persuasive authority.” District of Columbia v. Wesby, 138 S.Ct. 577, 589-90

(2018) (emphasis added). But in other cases, the Court has suggested that

the relevant universe of caselaw is substantially narrower — indeed, that it

may include no authority but Supreme Court authority. See, e.g., Reichle v.

Howards, 566 U.S. 658, 665-66 (2012) (“Assuming arguendo that controlling

Court of Appeals’ authority could be a dispositive source of clearly

established law in the circumstances of this case, the Tenth Circuit’s cases

do not satisfy the ‘clearly established’ standard here.”); Rivas-Villegas,

595 U.S. ----, slip op. at *2 (“Even assuming that controlling Circuit

precedent clearly establishes law for purposes of § 1983 . . . .”). The

Second Circuit, for its part, has flagged the “decisional law of the Supreme

Court and the applicable circuit court” — here, the Second Circuit itself —

as the relevant body of case law. Shechter v. Comptroller of City of New

York, 79 F.3d 265, 271 (2d Cir. 1996). Plaintiff’s out-of-circuit cases are

factually distinguishable in any event, as they involve little risk of

significant harm to pedestrians or others. See, e.g., Lewis v. Charter Twp.

of Flint, 660 F. App’x 339, 341 (6th Cir. 2016) (following stop for marijuana

possession, officer shot and killed motorist — after the car already passed

him — with no pedestrians nearby).

who was the only person in plaintiff’s vicinity, fired the first

of two shots from “about 44 feet” away from the side of

plaintiff’s vehicle, and that the plaintiff was driving “quite

slowly” (if at all) when the officer shot him. Cowan, 352 F.3d

at 759. And in Thevenin, a case with no video evidence, a

police officer shot a fleeing motorist following a “low to

average speed” chase, after the motorist crashed into a concrete

barrier with police vehicles surrounding him. 850 F. App’x at

34, 35. Crucial to the court’s determination in Thevenin was

the conclusion that “no one was in danger” when the officer

opened fire. Id. at 37. Here, by contrast, Ortiz drove a

5,500-pound vehicle in sudden, erratic bursts; struck a police

car with substantial force, evincing a strong resolve to escape;

and did so with officers at arm’s length from his vehicle, and

with civilians (both in cars and on the sidewalk) in the

immediate vicinity. In short, Ortiz’s actions put many people

in danger. None of the cases Ortiz cites involve this

combination of facts, let alone a videotape showing them

clearly. Hasper’s motion for summary judgment on the excessive-

force claim is therefore granted on qualified-immunity grounds.

D. State-law Claims

Plaintiff also brings a state-law claim for battery

against Hasper and a related respondeat superior claim against

the City of New York. “New York law regarding assault and

battery generally parallels federal law regarding excessive

force.” Mesa v. City of New York, 09-cv-10464, 2013 WL 31002,

at *27 (S.D.N.Y. January 3, 2013). While “the doctrine of

qualified immunity applies to federal causes of action but is

not generally understood to protect officials from claims based

on state law,” Stein ex rel. Stein v. Barthelson, 419 Fed. Appx.

67, 71 (2d Cir. 2011), New York State has its own analogue. The

New York courts “grant government officials qualified immunity

on state-law claims except where the officials’ actions are

undertaken in bad faith or without a reasonable basis.” Jones

v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006). Plaintiff does not

allege that Hasper acted in bad faith, and points to no evidence

in the record that would support such a conclusion. Given the

Court’s analysis on the excessive force claim, qualified

immunity applies to the battery claim too. See Felix v. City of

New York, 408 F. Supp. 3d 304, 312 (S.D.N.Y. 2019) (“The finding

of qualified immunity on the excessive force claims requires a

grant of summary judgment on assault and battery as well.”);

Mesa, 2013 WL 31002, at *27 (“Thus, as the force employed

against Mesa was objectively reasonable under the circumstances

- giving rise to a finding of qualified immunity - her assault

and battery claims must fail as well.”).

Although the Plaintiff’s amended complaint omitted the

City as a defendant on the fifth cause of action (for battery)

and did not mention respondeat superior by name, I construe that

cause of action as alleging a respondeat superior claim against

the City. Given that the underlying claim of battery was

dismissed, however, 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 because the employees were

entitled to qualified immunity on the federal claims and were

therefore entitled to summary judgment on the state law claims);

Harsco v. Segui, 91 F.3d 337, 349 (2d Cir. 1996) (dismissing

respondeat superior claims where there was no surviving

underlying theory of liability); 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) (“because 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.”).

IV. Conclusion

For the reasons set out above, Hasper’s motion for

summary judgment is granted in its entirety. Plaintiff’s

respondeat superior claim against the City of New York is

likewise dismissed. Because there are no other remaining

claims, the Clerk of Court is respectfully directed to enter

judgment and close this case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: January 12, 2022

Brooklyn, New York