Rodriguez v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HEINS RODRIGUEZ,

Plaintiff, OPINION & ORDER

-against-

16-cv-5861 (NG)(RER)

CITY OF NEW YORK; Police Officer

ZHENG ZUOPENG, Shield No. 25461;

Police Officer ALEN CHEN, Shield No.

28461; Sergeant MATTHEW S.

STARRANTINO; and JOHN and JANE

DOE 1 through 10, individually and in their

official capacities (the names John and Jane

Doe being fictitious, as the true names are

presently unknown),

Defendants.

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GERSHON, United States District Judge:

Plaintiff Heins Rodriguez brings claims under 42 U.S.C. § 1983 and New York state law

against defendants the City of New York, Police Officer Zuopeng Zheng, Police Officer Alen

Chen, and Sergeant Matthew S. Starrantino in connection with an incident in which he was

stopped while riding his bicycle and then arrested on August 13, 2015. Specifically, plaintiff has

raised constitutional claims of excessive force, denial of the right to a fair trial, and failure to

intervene, and state law claims of assault and battery, negligent infliction of emotional distress,

and negligent hiring, training, and retention. The parties dispute whether plaintiff has raised a

negligence claim against Officer Zheng.

Plaintiff and defendants now move for partial summary judgment. For the reasons stated

below, plaintiff’s motion is denied, and defendants’ motion is granted in part and denied in part.

I. Factual Background

Unless otherwise stated, the following facts are undisputed.

On August 13, 2015, plaintiff was riding his bicycle in Queens on his way to meet his

mother. He had earphones in his ears which he was using to listen to music playing on his

phone. Plaintiff was wearing a backpack; he was not wearing a helmet. Officers Chen and

Zheng were parked in an unmarked police car near the intersection of 43rd Avenue and 104th

Street. The officers were assigned to the NYPD’s “bike initiative,” which issues moving

violations to cyclists.

At about 4:45 p.m., Officer Chen observed plaintiff riding his bicycle northbound on

104th Street toward the intersection of 43rd Avenue. 104th Street is a one-way street, allowing

only southbound traffic, though the parties dispute whether the road was closed to vehicular

traffic for construction on that day. Officer Zheng testified that he thought he also saw plaintiff

run a red light at the intersection. Officer Chen attempted to stop plaintiff to issue him a

summons by stepping out of the police car and using a hand signal. Officer Zheng remained

inside the police vehicle, where he was writing a summons for another bicyclist whom the

officers had previously stopped.

Plaintiff saw Officer Chen and turned around, riding his bicycle westbound on 43rd

Avenue. The officers, with Officer Zheng driving and Officer Chen in the passenger seat, then

followed plaintiff in their car with the intention of issuing him a summons. According to Officer

Zheng, the police car’s lights and sirens were on. Officer Zheng was not sure how fast he was

driving, but he thought that it was faster than 10 miles per hour and may have been more than 15

miles per hour. According to Officer Chen’s testimony, the police car was “possibly” going

more than 30 miles per hour. Chen Dep. at 59.

Officer Zheng testified that, after following plaintiff for less than 30 seconds, he pulled

his vehicle alongside plaintiff to get plaintiff’s attention to stop. Officer Zheng thought Officer

Chen might “scream out a window” to plaintiff, although he had not discussed this plan with

Officer Chen. Zheng Dep. at 157−58. Officer Chen, by contrast, testified that the officers

planned to drive past plaintiff, stop their car, step out, and again motion to plaintiff to stop.

While the officers were pursuing him, plaintiff fell off his bike, hit a parked car, and

landed on the ground. A central dispute is what caused this to happen. Plaintiff has offered

differing explanations. At his deposition, he testified that the right side of the police car hit the

left side of his body, causing him to fly into the air, hit a parked car, and land on the street. He

said that he had not been aware of the police car’s presence until it struck him. On other

occasions, plaintiff said the police car cut him off, causing him to hit the parked car.

Both officers have denied that the police car struck plaintiff. Officer Zheng testified that,

while he and Officer Chen were pursuing plaintiff, and when the police car was about a foot or

two away from him, plaintiff lost control and fell off his bike. Officer Zheng later concluded

that plaintiff’s bicycle had hit the parked car when that car’s owner showed him a scratch on his

driver’s side door.

When deposed, Officer Chen testified that, after the police car passed plaintiff and

stopped, he heard “a thud noise” and assumed that plaintiff had hit the parked car, although he

did not see him fall. Chen Dep. at 70−72. Officer Chen also testified that the police car was

never closer than three feet from plaintiff. He did acknowledge that Officer Zheng “possibly”

turned the car in front of plaintiff’s bike to cut plaintiff off. Id. at 94. During an interview with

the Civilian Complaint Review Board (“CCRB”), Officer Chen was more explicit: “By the time

we got to 102 Street, we were alongside the bicyclist. And we cut him off. And at that point, the

bicyclist, I guess he lost control somehow.” Pl. Exh. 8 at 6.

There are videos of the incident from two surveillance cameras. The videos capture the

moment plaintiff fell off his bike and the officers’ subsequent arrest of him. They start as the car

that plaintiff ultimately hit parks on the side of the road by a fire hydrant. Soon after, both

plaintiff, on his bicycle, and the unmarked police car come into view and plaintiff is seen falling

forward. The videos do not show whether there was contact between plaintiff’s bicycle and the

police car, but they do show that the police car was turning towards the curb—that is, in the

direction of plaintiff—at the time that plaintiff fell.1 When plaintiff falls, he and his bike travel

several feet in the air and the right side of plaintiff’s body lands with significant impact on the

road. Plaintiff stands up quickly.

According to the officers’ testimony and corroborated by the videos, after plaintiff’s fall,

Officer Zheng stopped the police car, the police officers exited, and they immediately

handcuffed plaintiff. Officer Zheng testified that plaintiff resisted arrest by twisting his body

around “a little bit.” Zheng Dep. at 228−30, 309−10. Officer Chen testified that plaintiff

resisted arrest by flailing his arms, but the videos do not depict him doing so.

Four minutes after plaintiff’s arrest, Sergeant Starrantino arrived at the scene. The

officers removed plaintiff’s backpack, which was still on his back, opened it, and examined its

contents. The backpack contained marijuana.

The officers transported plaintiff to the police precinct, where they called an ambulance.

Plaintiff told EMS that a car came up from behind him and “narrowed into his path and knocked

1 According to plaintiff, the videos of the incident show Officer Zheng examine the front

passenger door panel of the police car. While they do show him briefly looking at the passenger

side of the car after plaintiff has been handcuffed, it is not clear whether he is examining the door

for damage.

him into a parked car causing him to tumble off of the bike and flip over.” Pl. Exh. 10 at 3. He

complained about pain to the whole right side of his body, especially his elbow. After plaintiff

was treated at Elmhurst Hospital Center, officers brought him back to the precinct.

On August 13, 2015, Officer Zheng signed a criminal court complaint charging plaintiff

with Obstructing Governmental Administration in the Second Degree (“OGA”), in violation of

N.Y. Penal Law § 195.05; Resisting Arrest, in violation of N.Y. Penal Law § 205.30; Unlawful

Possession of Marijuana, in violation of N.Y. Penal Law § 221.05; Disorderly Conduct, in

violation of N.Y. Penal Law § 240.20(5); driving against traffic on a one-way roadway, in

violation of N.Y. Vehicle and Traffic Law § 1127-A; and not obeying traffic laws, in violation of

N.Y. Vehicle and Traffic Law § 1231.2

Officer Zheng prepared an Arrest Report with the following narrative:

Def was observed riding a bike going N/B on 114 Street against traffic and fail to

stop at steady red light. After a uniform officer told def to [s]top, def then fled

scene on his bike. While running away from [arresting officer] def did hit a

parked car fell off his bike scratched his right elbow. Upon arrest, def did flare

his arm refused to be handcuffed. During [search incident to lawful arrest], def

did have 12 zip bags of marijuana in his backpack.

Pl. Exh. 15 at 1. In a Resisting Arrest Supporting Declaration, Officer Zheng stated that plaintiff

had flailed his arms, held his arms against his body, struggled with the officer, and refused to be

handcuffed. And, in a Disorderly Conduct Supporting Deposition, the officer wrote that plaintiff

had committed disorderly conduct by “going wrong way on one way st. in midlane and pass

steady red light,” “fleeing from officer on a bike in a reckless manner,” causing a crowd to

gather in response to his actions, and blocking traffic, resulting in a traffic jam. Pl. Exh. 12.

2 In their 56.1 Statement, defendants write that plaintiff also was charged with failing to stop at a

red traffic signal light, in violation of N.Y. Vehicle and Traffic Law § 1111-D1, and they do not

mention that plaintiff was charged with OGA. Defs.’ Statement Pursuant to Local Civil Rule

56.1, ¶ 12. While plaintiff does not dispute defendants’ description of the charging instrument,

that description is not correct based on my review. See Defs.’ Exh. F.

On August 14, 2015, plaintiff was arraigned in criminal court and released on his own

recognizance.

When Officer Zheng next met with the prosecutor assigned to the case, he told the

prosecutor that “the red light charge [] couldn’t be sustained.” Zheng Dep. at 196. This was

because, according to the officer, the next time he passed by the intersection of 104th Street and

43rd Avenue, he realized that the traffic light at the intersection was a “three-phase light,”

meaning that vehicles traveling northbound, as Mr. Rodriguez had been, did not have a traffic

light. Id. at 194.

On December 7, 2015, Officer Zheng executed an amended criminal court complaint

which removed the allegation that plaintiff ran a red light, but perplexingly now included the

charge of failing to stop at a red traffic signal light, in violation of N.Y. Vehicle and Traffic Law

§ 1111-D1. The amended complaint also removed a charge of OGA.3

Plaintiff appeared in criminal court on 10 occasions. At his last appearance, on May 3,

2016, the prosecution offered him an adjournment in contemplation of dismissal (“ACD”) to

resolve the charges against him. Plaintiff accepted the ACD, and the case was later dismissed

and sealed.

Plaintiff claims that, as a result of the accident, he suffered persistent injuries that have

limited his ability to work.

3 Defendants’ characterization of this document—which plaintiff does not dispute—again does

not comport with my review of it. See Defs. Exh. G. Defendants claim that the amended

criminal court complaint removed the red traffic signal light charge and added a charge of OGA.

Defs.’ Statement Pursuant to Local Civil Rule 56.1, ¶ 13.

II. Procedural History

Plaintiff filed this action on October 20, 2016. On July 6, 2017, he filed a First Amended

Complaint (the “Complaint”), in which he asserted claims against the individual officer

defendants of excessive force under the Fourth and Fourteenth Amendments, denial of the

constitutional right to a fair trial, failure to intervene under § 1983, and New York state law

claims of assault and battery and negligent infliction of emotional distress. Plaintiff also alleged

that the City was liable for negligent hiring, training, and retention and that, under the theory of

respondeat superior, it was liable for assault and battery and negligent infliction of emotional

distress.

At a pre-motion conference, plaintiff agreed to the voluntarily dismissal of all claims

against Sergeant Starrantino. He also dropped the following claims against Officer Chen: all

those involving “the incident with the car because he[ was] a passenger,” denial of the

constitutional right to a fair trial, negligence,4 and negligent infliction of emotional distress.

Plaintiff and defendants now move for summary judgment. Plaintiff has moved for

summary judgment on his claims against Officer Zheng of excessive force, assault and battery,

and, in the alternative, negligence. He also seeks summary judgment on his claim of denial of

his right to a fair trial against Officer Zheng. Defendants have moved for summary judgment on

plaintiff’s claims of excessive force, assault and battery, denial of the constitutional right to a fair

trial, and negligent infliction of emotional distress against Officer Zheng; failure to intervene

4 As discussed below, defendants subsequently argued that the Complaint did not raise a

negligence claim against the individual officers.

against both individual officers; and negligent hiring, training, and retention against the City.5

Defendants also argue that plaintiff should not be permitted to pursue a negligence claim against

Officer Zheng.

III. Summary Judgment Standard

A party is entitled to summary judgment only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Only disputes relating to material facts—

i.e., “facts that might affect the outcome of the suit under the governing law”—may preclude the

entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An

issue of fact is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id.

The moving party bears the burden of demonstrating “the absence of a genuine issue of

material fact.” Celotex, 477 U.S. at 323. Once the moving party has asserted facts showing that

the nonmovant’s claims cannot be sustained, “the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

In determining whether to grant summary judgment, the court must “construe all

evidence in the light most favorable to the nonmoving party, drawing all inferences and

resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.

5 Defendants also move against plaintiff’s claims of excessive force and assault and battery

against Officer Chen on the basis that Officer Chen was not driving the police car. Plaintiff

responds that he previously agreed, at the pre-motion conference, to drop any claims against

Officer Chen related to “the vehicular pursuit and assault of plaintiff,” but he still “maintains that

defendant Chen is liable for his battery of plaintiff and other conduct following the collision,

including his failure to intervene in the forwarding of false information.” Pl. Opp. at 12.

Defendants did not address plaintiff’s claim that Officer Chen is liable for battery in their reply.

2010). But “[t]he mere existence of a scintilla of evidence in support of the [nonmoving party’s]

position will be insufficient; there must be evidence on which the jury could reasonably find for

the [nonmovant].” Anderson, 477 U.S. at 252. While “circumstantial evidence may be . . .

sufficient to raise a genuine issue of material fact precluding the grant of summary judgment,”

Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002), a party cannot survive a motion for summary

judgment by relying on “mere speculation or conjecture as to the true nature of the facts.” Hicks

v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks omitted).

IV. Discussion

a. Excessive Force under the Fourth Amendment and Assault and Battery

under State Law

Both sides move for summary judgment on plaintiff’s claims against Officer Zheng for

excessive force under the Fourth Amendment and assault and battery under New York law.

“[E]xcept for § 1983’s requirement that the tort [of excessive force] be committed under color of

state law, the essential elements of [excessive force and state law assault and battery claims are]

substantially identical.” Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir. 2009). Because

there is no dispute that Officer Zheng acted under color of state law, I will analyze the claims

together.

Defendants argue that plaintiff cannot show that Officer Zheng acted with the requisite

intent to sustain these claims. The Fourth Amendment protects individuals from seizures

executed with excessive force. See Graham v. Connor, 490 U.S. 386, 393–94 (1989). An

officer’s intent is relevant to establishing a claim of excessive force under the Fourth

Amendment, but only “to a limited extent.” Dancy v. McGinley, 843 F.3d 93, 116 (2d Cir.

2016). “A plaintiff must prove that an officer intended to commit acts that constituted a seizure

in the first instance” because “[t]he Fourth Amendment is not implicated absent a ‘governmental

termination of freedom of movement through means intentionally applied.’” Id. (quoting

Brower v. Cty. of Inyo, 489 U.S. 593, 596–97 (1989)); see Torres v. Madrid, 592 U.S. __, 141 S.

Ct. 989, 1001 (2021). “[A]s long as an officer deliberately performed acts that constitute a

seizure, the Fourth Amendment has been triggered, regardless of whether it was accomplished by

the exact method intended.” Dancy, 843 F.3d at 116. “[O]nce a seizure is initiated, an officer’s

objectively unreasonable conduct may violate the Fourth Amendment regardless of whether the

officer intended any injury to result.” Id. at 117.

Here, construing the facts in the light most favorable to plaintiff, a jury could conclude

that, to stop plaintiff, Officer Zheng intended to use the police car to block plaintiff’s path of

travel or even to hit plaintiff’s bicycle. Either one of these circumstances would constitute a

seizure under the Fourth Amendment. The latter circumstance is obvious. Regarding the

former, the Supreme Court’s decision in Brower is instructive. There, the police, who were

engaged in a high-speed car chase of Brower, the petitioner, set up a roadblock that crossed both

lanes of the highway, and Brower was killed when the stolen car he was driving crashed into the

roadblock. Brower, 489 U.S. at 594. The Court concluded that the roadblock constituted a

seizure, explaining:

In marked contrast to a police car pursuing with flashing lights, or to a policeman

in the road signaling an oncoming car to halt, a roadblock is not just a significant

show of authority to induce a voluntary stop, but is designed to produce a stop by

physical impact if voluntary compliance does not occur.

Id. at 598 (emphasis added and internal citations omitted).

In this case, the evidence would allow the jury to conclude that Officer Zheng

maneuvered his car to “produce a stop by physical impact if voluntary compliance [did] not

occur.” See id. First, plaintiff’s descriptions of the events, as well as the videos, support such a

conclusion. In addition, Officer Chen told the CCRB that the police car “cut [plaintiff] off,” Pl.

Exh. 8 at 6, and said at his deposition that Officer Zheng “possibly” turned in front of plaintiff’s

bicycle to cut him off, Chen Dep. at 94.

Although Officer Zheng stated that he planned merely to ride alongside plaintiff to get

him to stop, a jury could discredit his testimony in the face of the evidence to the contrary.

Officer Zheng admitted to driving within one or two feet of plaintiff, and the videos appear to

show that the front wheels of the police car were turned towards plaintiff when he fell. In

addition, while Officer Zheng testified that he expected Officer Chen to “scream out a window”

to plaintiff once they rode up alongside him, Officer Zheng admitted that he had not shared this

plan with Officer Chen. Zheng Dep. at 157−58. Indeed, Officer Chen testified that he was under

the impression that they would execute a different plan: riding past plaintiff and stopping their

car so that Officer Chen could “get out to signal him to stop.” Chen Dep. at 93.

That Officer Zheng may have hoped that, by cutting plaintiff off, he would induce him to

stop his bicycle voluntarily, not fall to the ground, is irrelevant to the analysis. See Brower, 489

U.S. at 598 (“It may well be that respondents here preferred, and indeed earnestly hoped, that

Brower would stop on his own, without striking the barrier, but we do not think it practicable to

conduct such an inquiry into subjective intent.”). “[I]t is enough for a seizure that a person be

stopped by the very instrumentality set in motion or put in place in order to achieve that result.”

Id. at 599. In short, the record contains ample evidence that plaintiff was “stopped by the very

instrumentality set in motion or put in place in order to achieve that result.” See id.

Accordingly, defendants are not entitled to summary judgment on plaintiff’s excessive force

claim under the Fourth Amendment or state law.6

6 Defendants rely heavily on Robinson v. City of New York, 2018 WL 4344949, at *1 (E.D.N.Y.

Sept. 11, 2018), where the plaintiff, who was fleeing from the police on foot, was injured when

he ran into the road and was struck by a police car. The court granted summary judgment to

Nor is plaintiff entitled to summary judgment on these claims. Construing the facts in the

light most favorable to defendants, a jury could find that Officer Zheng did not intend to use his

car to seize plaintiff. The officer testified that he planned to get plaintiff’s attention through

“[l]ights and sirens and tell him to stop.” Zheng Dep. at 156. If the jury credits this testimony, it

could find that the officer did not seize plaintiff. See Torres, 141 S. Ct. at 995 (“The common

law distinguished the application of force from a show of authority, such as an order for a

suspect to halt. The latter does not become an arrest unless and until the arrestee complies with

the demand.”); Cty. of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (“[N]o Fourth

Amendment seizure would take place where a ‘pursuing police car sought to stop the suspect

only by the show of authority represented by flashing lights and continuing pursuit,’ but

accidentally stopped the suspect by crashing into him.” (quoting Brower, 489 U.S. at 597)).

Thus, the determination as to whether a seizure occurred must be reserved for the jury. See

Toscano v. City of Fresno, 2015 WL 4508582, at *4 (E.D. Cal. July 24, 2015).

“‘[S]eizure’ alone is not enough for § 1983 liability; the seizure must be ‘unreasonable.’”

Brower, 489 U.S. at 599. “Determining whether the force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality

of the intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks omitted).

Considerations include “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

defendants on plaintiff’s excessive force claim. Id. at *5. Despite defendants’ argument

otherwise, Robinson supports my conclusion here. The court recognized that, had plaintiff

argued that “using a car as a roadblock to stop his path of flight violated the Fourth

Amendment,” “[t]his course of events would constitute a Fourth Amendment seizure” under

Brower. Id. at *4 n.8. As discussed above, the record in this case includes evidence that Officer

Zheng deliberately used his car as a roadblock to block plaintiff’s path.

or attempting to evade arrest by flight.” Id. Here, there are disputed facts as to whether the

seizure, if there was one, was unreasonable.7

In sum, defendants’ and plaintiff’s motions for summary judgment on plaintiff’s claims

of excessive force under the Fourth Amendment and assault and battery are denied.

b. Excessive Force under the Fourteenth Amendment

The parties also move for summary judgment on plaintiff’s claim of excessive force

under the Fourteenth Amendment. The Fourteenth Amendment applies only to excessive force

claims that do not involve “an arrest, investigatory stop, or other ‘seizure’ of a free citizen.”

Graham, 490 U.S. at 395; accord Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998). As

described above, questions of fact remain as to whether Officer Zheng’s intended to seize

plaintiff, and therefore summary judgment on this claim is also inappropriate.

c. Whether Officer Zheng is Entitled to Qualified Immunity on Plaintiff’s

Excessive Force Claim

Defendants argue that Officer Zheng at least is entitled to qualified immunity on

plaintiff’s excessive force claim under § 1983. “Qualified immunity is applicable unless the

official’s conduct violated a clearly established constitutional right.” Pearson v. Callahan, 555

U.S. 223, 232 (2009). Therefore, even if a police officer is found liable for

7 Plaintiff argues otherwise by claiming that Officer Zheng used “deadly force” against him. In

cases involving deadly force, a court must instruct the jury that “it is not objectively reasonable

for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to

believe that the suspect poses a significant threat of death or serious physical injury to the officer

or others.” Rasanen v. Doe, 723 F.3d 325, 333 (2d Cir. 2013) (alterations and quotation marks

omitted). Plaintiff correctly asserts that defendants would not be able to meet this standard. But

the Second Circuit has limited the standard to cases involving “‘evidence of the use of force

highly likely to have deadly effects’”—specifically, “the fatal shooting of an unarmed suspect.”

Id. at 334 (quoting Terranova v. New York, 676 F.3d 305, 309 (2d Cir. 2012)). In fact, in

Terranova, the Court, relying on the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372,

379−83 (2007), found that a traffic stop used to apprehend suspects did not constitute deadly

force. 676 F.3d at 309.

using excessive force, the officer may be entitled to qualified immunity if it was not objectively

unreasonable for him or her to believe that the use of such force was lawful. “The objective

reasonableness test is met—and the defendant is entitled to immunity—if officers of reasonable

competence could disagree on the legality of the defendant’s actions.” Lennon v. Miller, 66 F.3d

416, 420 (2d Cir. 1995) (internal quotation marks omitted). Defendants assert that, “[e]ven

assuming Officer Zheng struck plaintiff with the police vehicle or came so close to plaintiff that

he hit a parked car,” “no controlling precedent” at the time of plaintiff’s arrest “would have

compelled every reasonable police officer to conclude that [Officer Zheng] was barred from

pulling up alongside plaintiff in his police vehicle.” Defs.’ Memo. of Law at 10.

Defendants fail to acknowledge the factual dispute as to whether Officer Zheng merely

intended to pull alongside plaintiff or deliberately cut off his path of travel with his vehicle. I

thus deny defendants’ motion for summary judgment based on qualified immunity as it is subject

to the same “genuine, material, factual disputes” as the excessive force claim itself. See Cowan

ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir. 2003).

d. Negligence

If I determine, as I have, that summary judgment on plaintiff’s claims of excessive force

and assault and battery against Officer Zheng is not appropriate, plaintiff seeks summary

judgment on his negligence claim against the officer, arguing “that the undisputed evidence

proves at least negligence.” Pl.’s Memo. of Law at 1−2. But, if I find that “factual disputes

predominate,” plaintiff asks that the “question of intent [] be put to a jury.” Id. at 5. Defendants

argue that plaintiff is not entitled to pursue a negligence claim against Officer Zheng because he

raised it for the first time on summary judgment and, alternatively, that he is not entitled to

summary judgment on the claim because he has not shown that Officer Zheng was negligent as a

matter of law.

I must first decide whether plaintiff may pursue a negligence claim at all against Officer

Zheng. In the Complaint, negligence is mentioned once—in the heading of the section setting

forth plaintiff’s third claim. That section, which is entitled “Negligence; Negligent Hiring,

Training & Retention,” focuses on the liability of the City for the actions of the individual

defendants, not on the liability of the individual defendants themselves.

Plaintiff nonetheless argues that defendants have been aware that he was asserting a

negligence claim against Officer Zheng. In addition to citing his use of the term “negligence” in

the Complaint, plaintiff notes that negligence was mentioned in his Notice of Claim, in the

parties’ proposed joint pre-trial order, and in defendants’ pre-motion conference letters.

According to plaintiff, “the parties have been litigating negligence as a core claim in this case

from the outset.” Pl. Reply at 2.

Although I agree with defendants that the Complaint does not indicate that plaintiff has

raised a negligence claim against Officer Zheng, I will allow plaintiff to pursue this claim by

treating the Complaint as amended. Defendants do not argue, nor could they, that they will be

prejudiced by such a ruling. See Block v. First Blood Assocs., 988 F.2d 344, 350–51 (2d Cir.

1993). To the contrary, defendants addressed the merits of a negligence claim against Officer

Zheng in a pre-motion conference letter. Moreover, no additional discovery is needed on this

claim as it involves the same set of facts, and the parties have fully addressed the merits of the

claim in their summary judgment briefing. See Sprayregen v. Bank of Am., N.A., 2012 WL

2994633, at *4 (D. Vt. July 23, 2012). Accordingly, I now deem the Complaint amended to

include a negligence claim against Officer Zheng, and I deem defendants’ answer to the

Complaint amended to deny this claim.

However, I deny plaintiff’s motion for summary judgment on this claim. Questions of

fact exist concerning whether Officer Zheng violated the law through intentional, rather than

negligent, conduct. Plaintiff may submit his negligence claim in the alternative to the jury. See,

e.g., Hodge v. Vill. of Southampton, 838 F. Supp. 2d 67, 88 n.14 (E.D.N.Y. 2012); Bean v. City

of Buffalo, 1993 WL 152081, at *9 (W.D.N.Y. Apr. 26, 1993).

e. Denial of the Constitutional Right to a Fair Trial

Both plaintiff and defendants have moved for summary judgment on plaintiff’s claim that

Officer Zheng deprived him of his right to a fair trial by fabricating evidence against him and

forwarding it to the Queens County District Attorney’s office. Plaintiff alleges that Officer

Zheng fabricated the allegations that he resisted arrest, ran a red light, and committed disorderly

conduct.

“To succeed on a fabricated-evidence claim, a plaintiff must establish that an (1)

investigating official (2) fabricated information (3) that is likely to influence a jury’s verdict, (4)

forwarded that information to prosecutors, and (5) the plaintiff suffered a deprivation of life,

liberty, or property as a result.” Ashley v. City of N.Y., 992 F.3d 128, 139 (2d Cir. 2021) (internal

quotation marks and alterations omitted). In McDonough v. Smith, 588 U.S. ___, 139 S. Ct.

2149, 2156–57 (2019), the Supreme Court, citing Heck v. Humphrey, 512 U.S. 477 (1994), held

that a plaintiff could not bring a fabricated-evidence claim under § 1983 prior to the favorable

termination of his prosecution.

Relying on McDonough, defendants assert that plaintiff’s claim must be dismissed

because an ACD cannot constitute a favorable termination for purposes of a fair trial claim. But,

in Smalls v. Collins, 10 F.4th 117, 144 (2d Cir. 2021), the Second Circuit rejected this same

argument, holding that “[t]he dismissal of [] charges pursuant to an ACD [] constitute[s] a

favorable termination within the meaning of McDonough and McDonough poses no bar to suit.”

Defendants also contend that, because plaintiff was charged with Unlawful Possession of

Marijuana under Penal Law § 221.05, and there is no dispute that he possessed marijuana in his

backpack at the time of his arrest, he cannot show that any potentially fabricated evidence

deprived him of liberty beyond what was justified by the charge of marijuana possession.

Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d Cir. 2016), is instructive. There,

the Second Circuit emphasized that, even where a plaintiff was lawfully arrested, he or she may

still show that an officer’s fabrication of evidence deprived him of liberty. It explained:

[A]n arrest in itself may involve only a limited deprivation of liberty. The setting

of bail, which may make the difference between freedom and confinement

pending trial, and the prosecutor’s decision to pursue charges rather than to

dismiss the complaint without further action, may depend on the prosecutor’s and

magistrate’s assessments of the strength of the case, which in turn may be

critically influenced by fabricated evidence. Thus, a further deprivation of liberty

can result from the fabrication of evidence even if the initial arrest is lawful.

Id.

Plaintiff correctly notes that, at the time of his arrest in 2015, when a person was alleged

to have committed an offense solely for marijuana possession under § 221.05, he or she could

only be served with a desk appearance ticket and not placed into custody unless very specific

conditions, none of which are alleged to be present here, were met.8 See N.Y. Crim. Proc. Law §

150.75; Idelfonso v. City of New York, 187 A.D.3d 576, 577 (1st Dep’t 2020). Because a jury

could find that plaintiff’s arrest and detention, as well as at least some of his 10 court

appearances, resulted from the other charges brought against him—the ones plaintiff claims were

8 On March 31, 2021, Penal Law § 221.05 was repealed.

fabricated, defendants are not entitled to summary judgment on the fabricated-evidence claim.

See Wellner v. City of New York, 393 F. Supp. 3d 388, 395−96 (S.D.N.Y. 2019), reconsideration

denied, 2019 WL 5538064 (S.D.N.Y. Oct. 25, 2019).

Plaintiff also seeks summary judgment on his fabricated-evidence claim, arguing that

Officer Zheng fabricated that he resisted arrest, ran a red light, and committed disorderly conduct

and that he was deprived of library as a result. I agree with plaintiff that, at a minimum, the

video evidence does not seem to support a finding that he resisted arrest. Nonetheless, it must be

left to the jury to determine, under the totality of the evidence, whether plaintiff has satisfied the

elements of his claim. See Snead v. City of New York, 463 F. Supp. 3d 386, 394−96 (S.D.N.Y.

2020), reconsideration denied sub nom. Snead v. LoBianco, 2021 WL 861060 (S.D.N.Y. Mar. 8,

2021).

The parties’ motions for summary judgment on plaintiff’s denial of the constitutional

right to a fair trial claim are denied.

f. Negligent Hiring, Training, and Retention under State Law

Defendants seek summary judgment on plaintiff’s state law claim against the City for

negligent hiring, training, and retention. “A claim for negligent hiring or supervision can only

proceed against an employer for an employee acting outside the scope of her employment.”

Colodney v. Continuum Health Partners, Inc., 2004 WL 829158, at *8 (S.D.N.Y. Apr. 15, 2004).

“When an employee is acting within the scope of her employment, her employer may be held

liable for the employee’s negligence only under a theory of respondeat superior, and no claim

may proceed against the employer for negligent hiring or retention.” Id.

“Normally the question of whether a defendant employee was acting within the scope of

his or her employment depends heavily on the facts and circumstances of the particular case, and

thus is appropriate for a jury.” Rowley v. City of New York, 2005 WL 2429514, at *13 (S.D.N.Y.

Sept. 30, 2005). “But where a defendant employer admits its employees were acting within the

scope of their employment, an employer may not be held liable for negligent hiring, training, and

retention as a matter of law.” Id.; accord McKnight v. City of Rochester, 2015 WL 1462379, at

*3–4 (W.D.N.Y. Mar. 30, 2015). Here, “[d]efendants admit that the individual defendants were

acting as agents and employees of the City of New York and were acting within the scope of

their employment at all times relevant to the subject incident in this matter.” Defs.’ Memo. of

Law at 12. Accordingly, defendants’ motion for summary judgment with respect to this claim is

granted, and the claim is dismissed.

g. Negligent Infliction of Emotional Distress under State Law

Defendants seek summary judgment on plaintiff’s state law claim against Officer Zheng

of negligent infliction of emotional distress (“NIED”), arguing solely that plaintiff cannot

establish that the officer’s alleged acts rose to the level of “extreme and outrageous conduct.”

While some courts have held that the tort of NIED requires, among other things, “extreme and

outrageous conduct,” see, e.g., Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 297–98

(S.D.N.Y. 2015); Holmes v. City of New York, 178 A.D.3d 496, 496 (1st Dep’t 2019), some New

York courts have disavowed that requirement. Stephanie L. v. House of the Good Shepherd, 186

A.D.3d 1009, 1013, reargument denied, 189 A.D.3d 2171 (4th Dep’t 2020); Taggart v.

Costabile, 131 A.D.3d 243, 253−55 (2d Dep’t 2015). Most important for purposes of this

proceeding, the Second Circuit, citing Taggart, 131 A.D.3d at 252−53, does not list “extreme

and outrageous conduct” as an element of the tort. Francis v. Kings Park Manor, Inc., 992 F.3d

67, 81 (2d Cir. 2021). Defendants’ motion for summary judgment on plaintiff’s NIED claim is

thus denied.9

h. Failure to Intervene

“It is widely recognized that all law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014)

(internal quotation marks omitted). “An officer who fails to intercede is liable for the preventable

harm caused by the actions of the other officers where that officer observes or has reason to

know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or

(3) that any constitutional violation has been committed by a law enforcement official.”

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (internal citations omitted). Because I have

denied defendants’ summary judgment motion on plaintiff’s constitutional claims of excessive

force and fabricated evidence, their motion on this claim is also denied. Rowell v. City of New

York, 2018 WL 4682219, at *6 (S.D.N.Y. Sept. 28, 2018).

V. Conclusion

For the reasons stated above, plaintiff’s motion for partial summary judgment is denied,

and defendants’ motion for partial summary judgment is granted in part and denied in part.

Specifically, defendants’ motion is granted as to plaintiff’s claim of negligent hiring, training,

and retention against the City, and that claim is dismissed. Defendants’ motion is otherwise

denied.

9 Plaintiff acknowledges in his opposition that the claim is pled in the alternative and should be

dismissed if Officer Zheng is found liable for assault or excessive force. See Hall v. City of

Buffalo, 151 A.D.3d 1942, 1944 (4th Dep’t 2017).

Plaintiff’s First Amended Complaint is deemed amended to add a negligence claim

against Officer Zheng. Defendants’ answer to the First Amended Complaint is deemed amended

to deny this claim.

Plaintiff’s claims against Sergeant Sarrantino are dismissed. The following claims

against Officer Chen are also dismissed: those relating to the vehicular pursuit and plaintiff’s

fall, denial of constitutional right to a fair trial, negligence, and negligent infliction of emotional

distress.

SO ORDERED.

/S/

NINA GERSHON

United States District Judge

March 28, 2022

Brooklyn, New York