Rosenberg v. Town of Niskayuna

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________

ERICK ROSENBERG,

Plaintiff,

v. 1:17-CV-594

(FJS/ATB)

TOWN OF NISKAYUNA, JEFFERY

RELATION, NICHOLAS PARDI, and

PAUL HOBSON,

Defendants.

______________________________________________

APPEARANCES OF COUNSEL

LUIBRAND LAW FIRM, PLLC KEVIN A. LUIBRAND, ESQ.

950 New Loudon Road

Latham, New York 12110

Attorneys for Plaintiff

NAPIERSKI, VANDENBURGH, SHAWN F. BROUSSEAU, ESQ.

NAPIERSKI & O'CONNOR, LLP

296 Washington Avenue Extension

Albany, New York 12203

Attorneys for Defendants

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed his complaint, asserting claims under 42 U.S.C. § 1983 and New York State

law, against Defendant Town of Niskayuna and three of its police officers, Defendants Relation,

Pardi and Hobson. See Dkt. No. 1, Complaint. Plaintiff's claims arise from an incident involving

Officers Relation and Pardi's alleged use of excessive force against him on May 30, 2016. See id.

Pending before the Court is Defendants' motion for summary judgment. See Dkt. No. 23.

Plaintiff opposes the motion. See Dkt. No. 31.

II. BACKGROUND

On May 30, 2016, Defendant Relation was stationed in the parking lot of a Dollar Tree in a

police vehicle equipped with a license-plate reader. As Plaintiff drove past the Dollar Tree,

Defendant Relation's license-plate reader indicated that Plaintiff's vehicle, a 2000 BMW 328i, had a

suspended registration.

Defendant Relation activated his emergency lights and siren in an attempt to pull Plaintiff

over. At this point, Defendant Relation's dash cam captured the events resulting in Plaintiff's arrest

on film.1 Plaintiff did not pull over but drove his vehicle back to his residence at 2054 State Street

with Defendant Relation in pursuit. See Defendants' Motion for Summary Judgment at Exhibit "R"

("Video"). Plaintiff slowed to near-complete stops at most stop signs and turns on his way to his

residence. See id. He also briefly drove in the wrong lane of travel to maneuver around a stopped

vehicle. See id. Once Plaintiff entered his driveway and parked his car, Defendant Relation parked

his vehicle adjacent to the rear driver's-side door of Plaintiff's car. See id. At first, Plaintiff tried to

exist his vehicle through his driver's-side door but then closed that door as Defendant Relation

approached his car. See id. Plaintiff then attempted to exit his vehicle once more through his

driver's-side door, but Defendant Relation slammed the door closed. See id. Plaintiff then placed

his left arm and head outside his window. See id. With Defendant Relation's left hand on Plaintiff's

1 Defendant Relation's dash cam captured footage of events both inside and outside of his

squad car. All citations to the video footage are to those events occurring outside of Defendant

Relation's vehicle. Defendants submitted this video, which does not contain any sound, as

Exhibit "R" to their motion for summary judgment.

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left wrist and his right hand on Plaintiff's left, upper arm, Defendant Relation began to pull on

Plaintiff's arm. See id. Once Defendant Relation ceased pulling on his arm, Plaintiff climbed out of

his driver's-side window as Defendant Relation maintained his left hand on Plaintiff's wrist and his

right hand on Plaintiff's left, upper arm. See id. After Plaintiff exited his vehicle, Defendant

Relation twisted Plaintiff's left arm behind his back using both hands as he brought Plaintiff down

to the ground. See id. At this point, Plaintiff is obscured from the dash cam until Defendant

Relation briefly placed a handcuffed Plaintiff on the hood of the squad car. See id.

Plaintiff's left arm, which had sustained a serious injury to the nerve system that controls

movement and sensation in his arm and hand during a motorcycle accident in 1992, was fractured

during his arrest. Plaintiff admitted that he had consumed alcohol before Defendant Relation

pursued him, and he ultimately pled guilty to a DWI.

III. DISCUSSION

A. Summary judgment standard

Under Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The moving party bears the initial burden to demonstrate "the absence of a genuine issue of material

fact." Celotex, 477 U.S. at 323. A fact is "material" if it "might affect the outcome of the suit under

the governing law" and is genuinely in dispute "if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Selevan v. N.Y.

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Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (noting that summary judgment is appropriate

where the non-moving party "'fails to come forth with evidence sufficient to permit a reasonable

juror to return a verdict in his or her favor on' an essential element of a claim" (quotation omitted)).

If the moving party meets this burden, the nonmoving party "'must set forth specific facts

showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quotation omitted).

"When ruling on a summary judgment motion, the district court must construe the facts in the light

most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable

inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d

Cir. 2003) (citation omitted). Nonetheless, the nonmoving party "must do more than simply show

that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted), and cannot rely on "mere

speculation or conjecture as to the true nature of the facts to overcome a motion for summary

judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citation omitted). Moreover,

"'[m]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of

material fact where none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.

2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal quotation marks

and citations omitted)).

B. Plaintiff's § 1983 claims

Plaintiff alleges the following claims under § 1983: (1) excessive force against Defendants

Relation, Pardi and Hobson, (2) cruel and unusual punishment against Defendants Relation, Pardi

and Hobson, and (3) municipal liability against Defendant Town of Niskayuna. See Complaint at

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¶¶ 35-44.

"Section 1983 provides a civil claim for damages against any person who, acting under color

of state law, deprives another of the right, privilege or immunity secured by the Constitution or the

laws of the United States." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citations omitted).

Section 1983 does not create any substantive rights; rather, it provides civil litigants with a

procedure to redress the deprivation of rights established elsewhere. See id. (citing City of

Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985)) (other citation

omitted). "To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color

of state law deprived him of a federal right." Id. (citations omitted)

1. Plaintiff's excessive force claims

Defendants argue that Defendants Relation, Pardi, and Hobson did not use excessive force

against Plaintiff on May 30, 2016. Specifically, they assert that

[a]ll of the officers' use of force and conduct that evening was clearly

reasonable under the . . . circumstances. Plaintiff was erratic, non-

compliant and violent with the officers. He refused verbal orders, and

continued to resist all attempts to place him under arrest. His reckless

driving that evening displayed a complete disregard not only for his

own safety, but also for the safety of the pursing officer and the

public.

See Dkt. No. 23-25, Defendants' Memorandum of Law, at 12.2

In response, Plaintiff contends that the evidence shows that he "was fully compliant as he tried to

exist through his vehicle's small window" and that "Defendant Relation continued to exert excessive

2 All citations to page numbers in documents in the record refer to the page numbers that

the Court's Electronic Filing System generates and which are located in the top right corner of

the pages of those documents.

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force on Plaintiff's arm until Plaintiff 'heard something snap' and 'felt like the bones [were] wanting

to go right out of [his] skin.'" See Dkt. No. 31, Plaintiff's Memorandum of Law, at 16 (citing Ex. B,

p. 25). Plaintiff further contends that "Defendant Pardi grabbed Plaintiff's useless, disabled, and

now-broken left arm and forcefully twisted it to the small of Plaintiff's back, during the course of

which he felt 'something go awry.'" See id. at 8 (citing Ex. I-1, p. 28).

The Supreme Court has held that "all claims that law enforcement officers have used

excessive force – deadly or not – in the course of an arrest, investigatory stop, or other 'seizure' of a

free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard[.]"

Graham v. Connor, 490 U.S. 386, 395 (1989). A determination of reasonableness under the Fourth

Amendment3 "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." Id. at 396 (quotation omitted). Thus, an excessive force claim "is subject to an objective

test of reasonableness under the totality of the circumstances, which requires consideration of the

specific facts in each case, including the severity of the crime at issue, whether the suspect posed an

immediate threat to the safety of others and whether he is actively resisting arrest." Sullivan v.

Gagnier, 225 F.3d 161, 165 (2d Cir. 2000) (citing Graham v. Connor, 490 U.S. 386, 395-396, 109

S. Ct. 1865, 104 L. Ed. 2d 443 (1989)) (other citation omitted). "The 'reasonableness' of a

particular use of force must be judged 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)

(citation omitted). In addition, "[t]he calculus of reasonableness must embody allowance for the

3 Plaintiff's Fourth Amendment claim is made applicable to Defendants, as state actors,

through incorporation under the Fourteenth Amendment. See Ker v. California, 374 U.S. 23 ,30

(1983).

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fact that police officers are often forced to make split-second judgments – in circumstances that are

tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular

situation." Id. at 396-97.

In this case, Plaintiff has raised a genuine issue of material fact as to whether Defendants

Relation and Pardi used excessive force against him. Although Plaintiff did not initially pull over

once Defendant Relation activated his emergency lights and siren, the video does not reveal

Plaintiff "driving recklessly through stop signs" or "speeding and traveling in the wrong lane of

traffic." See Defendants' Memorandum of Law at 3, 9 (citations omitted). Rather, Plaintiff slowed

to near-complete stops at most stop signs and turns on the way to his residence. See Video. He also

briefly drove in the wrong lane of travel to maneuver around a stopped vehicle. See id. Although

Defendants claim that Plaintiff "continued to resist all attempts to place him under arrest" and that

he resisted arrest "violently," Defendants' Memorandum of Law at 11-12, Plaintiff testified that

Defendant Relation told him "'he [was] going to take [him] out the window'" and further testified

that he did not resist arrest, see Plaintiff's Memorandum of Law at 14, 19. Furthermore, Defendant

Relation's dash cam shows him using both hands to pull Plaintiff from his car via the front, driver's-

side window. See Video. It also shows him using both hands to twist Plaintiff's left arm behind his

back as he brought Plaintiff down to the ground. See id. Yet, Defendant Relation knew Plaintiff

had "a disabled left arm from a previous accident."4 See Dkt. No. 23-3, Incident Report.

Moreover, although Defendants Relation, Pardi, and Hobson claim that "[P]laintiff placed his left

hand under his body in order to prevent himself from being handcuffed," see Defendants'

4 "The reasonableness of the force used may be assessed in light of the officer's

knowledge of a preexisting injury." Sanchez v. Port Auth. of N.Y. & N.J., No. 08-CV-1028

(RRM) (CLP), 2012 WL 1068078, *9 (E.D.N.Y. Mar. 29, 2012) (citations omitted).

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Memorandum of Law at 5 (citation omitted), Plaintiff states that Defendants Relation and Pardi

"twisted [his] broken arm 180 degrees at the break point while handcuffing him," see Plaintiff's

Memorandum of Law at 19 (citations omitted).

Accordingly, the Court finds that, viewing the evidence in the light most favorable to

Plaintiff, a rational factfinder could conclude that the force Defendants Relation and Pardi used on

Plaintiff was not objectively reasonable.5 See Brown v. City of N.Y., 798 F.3d 94, 103 (2d Cir.

2015) (concluding that "a jury will have to decide whether Fourth Amendment reasonableness was

exceeded" when the plaintiff was taken to the ground by police officers); Picciano v. McLoughlin,

723 F. Supp. 2d 491, 505 (N.D.N.Y. 2010) (denying summary judgment on excessive force claim

where "admissible record evidence exists from which a rational factfinder could conclude that [the]

[d]efendant's application of force was objectively unreasonable in light of the facts and

circumstances confronting him").

Alternatively, Defendants Relation, Pardi, and Hobson argue that they are entitled to

qualified immunity because "[h]ere, it cannot be claimed that every reasonable officer would have

concluded that all of the officers' actions violated [P]laintiff's Fourth Amendment rights." See

Defendants' Memorandum of Law at 17; see also Dkt. No. 34, Defendants' Reply Memorandum of

5 Plaintiff acknowledges that Defendant Hobson "did not place his hands on broken

Plaintiff's arm[.]" See Plaintiff's Memorandum of Law at 21. Nonetheless, Plaintiff argues that

Defendant Hobson is still liable for violating Plaintiff's Fourth Amendment rights because he

"failed to intervene in the excessive force used by Defendants Relation and Pardi." See id.

Defendant Hobson does not oppose this argument. The Court finds that a "genuine issue of

material fact" exists as to whether Defendant Hobson is liable for failing to intervene in

Defendants Relation and Pardi's excessive use of force against Plaintiff. See Kavanaugh v. Vill.

of Green Island, No. 8:14-CV-1244 (DJS), 2018 WL 1033288, *6 (N.D.N.Y. Feb. 22, 2018)

(observing that a law enforcement officer who "is present while an assault by fellow officers

upon an [sic] detainee occurs may nonetheless bear responsibility for any resulting constitutional

deprivation" (citation omitted)).

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Law at 9-10.

"'Qualified immunity protects public officials from liability for civil damages when one of

two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it

was objectively reasonable for the defendant to believe that his action did not violate such law.'"

Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196,

211 (2d Cir. 2007) (internal quotation marks omitted)); (other citation omitted). Defendants bear

the burden of establishing qualified immunity. See Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir.

2013) (citations omitted).

The qualified immunity inquiry proceeds in two parts. First, the court must determine

whether a statutory or constitutional right was violated when the evidence is "viewed in the light

most favorable to the plaintiff," and whether that statutory or constitutional right "was clearly

established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.

2010) (citations omitted). A constitutional right is "clearly established" when "'the contours of the

right [are] sufficiently clear that a reasonable official would understand that what he is doing

violates that right.'" Mollica v. Volker, 229 F.3d 366, 370 (2d Cir. 2000) (quoting Anderson, 483

U.S. at 640, 107 S. Ct. 3034).6 The Second Circuit has found three factors relevant to this inquiry:

(1) "the right in question [should be] defined with 'reasonable specificity'; (2) [Supreme Court and

Second Circuit decisions] support the existence of the right in question; and (3) . . . under

preexisting law a reasonable defendant official would have understood that his or her acts were

6 Although this is the second prong of the qualified immunity analysis, the Supreme

Court has relaxed the rigid order that Saucier v. Katz, 533 U.S. 194 (2001), prescribed and stated

that district courts have discretion to consider either element of the qualified immunity claim

first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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unlawful.'" Id. at 371 (quoting Schechter v. Comptroller of the City of New York, 79 F.3d 265, 271

(2d Cir. 1996) (quoting Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989))).

The Second Circuit has recognized a "general consensus" that an officer may not use force

that could exacerbate "visible injuries" when the suspect is "cooperating in [the] arrest[.]" Beckles

v. City of N.Y., 492 F. App'x 181, 182 (2d Cir. 2012) (summary order) (citing cases involving

officers handcuffing suspects who either have visible injuries or are cooperating in their arrests).

"The determinative question therefore becomes 'whether under the preexisting law [Defendants

Relation and Pardi] . . . would have understood . . . [their] acts [to be] unlawful.'" Mollica, 229 F.3d

at 371 (quotation omitted). In this case, the Court answers this question in the affirmative. See

Jennings v. Jones, 499 F.3d 2, 18 (1st Cir. 2007) (stating that "[w]hen an individual has been

forcibly restrained by several officers, has ceased resisting arrest for several seconds, and has

advised the officers that the force they are already using is hurting a previously injured ankle, we

cannot think of any basis for increasing the force used to such a degree that a broken ankle results").

With regard to the second are of the qualified-immunity inquiry, there is a genuine issue of

material fact as to whether Defendants Relation, Pardi, and Hobson violated Plaintiff's Fourth

Amendment rights. Thus, the relevant question is whether it was objectively reasonable for them to

believe that their actions did not violate that right. Considering the evidence in the light most

favorable to Plaintiff, and crediting his testimony that he did not resist arrest after he pulled over,

the Court cannot conclude that it was objectively reasonable for Defendants Relation, Pardi, and

Hobson to believe that their actions were lawful. "[I]t is impossible to 'determine whether

[Defendants] reasonably believed that [their] force was not excessive when several material facts

[are] still in dispute, [and, therefore,] summary judgment on the basis of qualified immunity [is]

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precluded.'" Picciano, 723 F. Supp. 2d at 505 (quoting Thomas v. Roach, 165 F.3d 137, 144 (2d

Cir. 1999) (emphasis added)).

2. Plaintiff's cruel and unusual punishment claim

Although Plaintiff alleges that Defendants Relation, Pardi, and Hobson violated his Eighth

Amendment rights during his arrest, it is well-settled that the Eighth Amendment only applies to

individuals convicted of a crime. See Graham, 490 U.S. at 395 n.10. Furthermore, Plaintiff does

not address Defendants' argument that the Court should dismiss his Eighth Amendment claim for

cruel and unusual punishment. Therefore, the Court finds that Plaintiff has abandoned this claim.

See Cruz v. Wyckoff Heights Med. Ctr., No. 13-CV-8355 (ER), 2016 WL 5339540, *7 (S.D.N.Y.

Sept. 23, 2016) (noting that "[c]ourts have regularly dismissed claims as abandoned where a

plaintiff has failed to address them in opposing defendant's dispositive motions" (citation omitted)).

Therefore, the Court grants Defendants' motion for summary judgment with regard to Plaintiff's

Eighth Amendment claim.

3. Plaintiff's claim for municipal liability against Defendant Town of Niskayuna

It is well-established that a plaintiff may not hold a municipality liable under § 1983 on the

basis of respondeat superior. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690-

91 (1978). Rather, municipalities are responsible only for "their own illegal acts," Pembaur v.

Cincinnati, 475 U.S. 469, 479 (1986), and are not vicariously liable for civil-rights violations that

their employees perpetrate, see Monell, 436 U.S. at 691. In order to sustain a § 1983 claim for

municipal liability, a plaintiff must show that he suffered a constitutional violation and that the

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violation resulted from an identified municipal policy or custom. See Monell, 436 U.S. at 694-95.

A municipal policy or custom may be established where the facts show the following: (1) a formal

policy, officially promulgated by the municipality, see id. at 690; (2) action taken by the official

responsible for establishing policy with respect to a particular issue, see Pembaur, 475 U.S. at 483-

84; (3) an unlawful practice by subordinate officials so permanent and widespread as to practically

have the force of law, see City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1985); or (4) a

failure to train or supervise that amounts to "deliberate indifference" to the rights of those with

whom the municipality's employees interact, City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989).

Plaintiff argues that Defendant Town of Niskayuna is liable under § 1983 for violating his

constitutional rights because it "failed to adequately train and supervise its employees on the proper

method and manner in which to restrain and move an individual suffering from physical disability,

and on the proper use of force when restraining an individual." See Complaint at ¶ 40. "Only

where a municipality's failure to train its employees in a relevant respect evidences a 'deliberate

indifference' to the rights of its inhabitants can such a shortcoming be properly though of as a

[municipal] 'policy or custom' that is actionable under § 1983." Harris, 489 U.S. at 389. A similar

pattern of misconduct resulting from allegedly inadequate training is also "'ordinarily necessary' to

demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 563

U.S. 51, 62 (2011) (quotation omitted). Except in very rare cases, a "custom or policy cannot be

shown by pointing to a single instance of unconstitutional conduct by a mere employee of the

[municipality]." Newton v. City of N.Y., 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008) (footnote

omitted); see also Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002)

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(noting that "[a] single incident by itself is generally insufficient to establish the affirmative link

between the municipal policy or custom and the alleged unconstitutional violation" (citation

omitted)). A municipality can only be found to be deliberately indifferent based on a single

constitutional violation where "the unconstitutional consequences of failing to train [are] so patently

obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of

violations." Connick v. Thompson, 563 U.S. 51, 64 (2011). In other words, the municipality must

put their employees in a situation with an "utter lack of an ability to cope with constitutional

situations . . . ." Id. at 67.

Plaintiff has not demonstrated a similar pattern of misconduct resulting from the allegedly

inadequate training of Defendant Town of Niskayuna's police officers. Thus, the question is

whether this is one of those rare cases in which "the unconstitutional consequences of failing to

train [are] so patently obvious." Id. at 64. This is not one of those cases. Defendant Town of

Niskayuna has a policy that covers the use of force on restraining individuals, including those with

disabilities. See Dkt. No. 23-19, 2006 Use of Force Policy.7 The Use of Force Policy provides as

follows:

It shall be the policy of the Niskayuna Police Department that

excessive physical force will not be used by any member against any

individual for any reason. If it becomes necessary to use force,

member will only use the force, which is reasonable, under the

circumstances, to enforce laws, maintain control of prisoners and

apprehend suspects as described in the following procedure.

See id. at 5 (emphasis added).

7 Defendants submitted two copies of the Use of Force Policy, one from 2016 and one

from 2006. The Court relies on the one issued in 2006 because the 2016 Use of Force Policy did

not go into effect until August 2, 2016, more than two months after the date of the incident at

issue in this case, i.e., May 30, 2016.

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The Use of Force policy clearly accounts for varying degrees of force, which the officer may

be required to employ given the "circumstances." Id. Such circumstances include those in which

"otherwise reasonable force used in handcuffing a suspect may be unreasonable when used against

a suspect whom the officer knows to be injured[.]" Beckles, 492 F. App'x at 182.

Moreover, even assuming that Defendants Relation, Pardi, and Hobson had not been

adequately trained on how to arrest individuals with disabilities, "for liability to attach in this

circumstance the identified deficiency in a city's training program must be closely related to the

ultimate injury. Thus in the case at hand, [Plaintiff] must still prove that the deficiency in training

actually caused the police officers' [violation of his Fourth Amendment rights]." Harris, 489 U.S.

at 391 (footnote omitted). However, Plaintiff offers no evidence that the violation of his Fourth

Amendment rights would have been avoided had Defendants Relation, Pardi, and Hobson been

trained to arrest individuals with physical disabilities.8 See id. Therefore, viewing the evidence in

the light most favorable to Plaintiff, the court finds that a rational factfinder could not conclude that

a policy or custom on the part of Defendant Town of Niskayuna caused the alleged constitutional

violations in this case; and, therefore, the Court grants Defendants' motion for summary judgment

with regard to Plaintiff's § 1983 claim for municipal liability against Defendant Town of Niskayuna.

See Jenkins v. City of N.Y., 478 F.3d 76, 95 (2d Cir. 2007) (stating that "[t]he mere fact that [the

plaintiff] was falsely arrested, without more, does not show that the City's training program is

inadequate. A training program is not inadequate merely because a few of its graduates deviate

8 Plaintiff argues that, "[c]learly, this deficiency in Defendant Town's training and

supervision caused the deprivation of Plaintiff's Fourth Amendment right to be free from

excessive force[.]" See Plaintiff's Memorandum of Lat at 25. However, Plaintiff's "ipse dixit is

not admissible evidence." Slaitane v. Sbarro, Inc., Nos. 03 Civ. 5503 (AJP), 03 Civ. 5504 (AJP),

2004 WL 120315, *18 (S.D.N.Y. June 2, 2004).

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from what they were taught").

C. Plaintiff's claims under New York State Law

1. Plaintiff's excessive force claims

Defendants argue that Plaintiff's state law claims for excessive force fail for the same reason

as his § 1983 claim for excessive force. See Defendants' Memorandum of Law at 13. Under New

York State law, "[c]aims that law enforcement personal [sic] used excessive force in the course of

an arrest, investigatory stop or other prearraignment seizure are analyzed under the 4th Amendment

and its standard of objective reasonableness." Passino v. State, 260 A.D.2d 915, 916 (3d Dep't

1999) (citations omitted). Thus, for the same reason that the Court denied Defendants' motion for

summary judgment with regard to Plaintiff's § 1983 excessive force claim against Defendants

Relation and Pardi, it also denies Defendants' motion with regard to Plaintiff's state-law excessive

force claim against Defendants Relation and Pardi. In addition, because Defendants failed to argue

that, under New York State law, Defendant Hobson is not liable for failing to intervene in

Defendants Relation's and Pardi's alleged use of excessive force on Plaintiff and that Defendant

Town of Niskayuna is not liable for the alleged use of excessive force, the Court also denies

Defendants' motion for summary judgment with regard to Plaintiff's state-law excessive force

claims against Defendant Hobson and Defendant Town of Niskayuna.9

2. Plaintiff's assault and battery claims

9 Unlike the case with § 1983 claims, Plaintiff may hold Defendant Town of Niskayuna

liable for the acts of its employees under a theory of respondeat superior on his state-law claims.

See Cooper v. City of N.Y., No. 17 CV-1517 (NCG) (RLM), 2019 WL 3642996, *17 (E.D.N.Y.

Aug. 5, 2019).

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Defendants argue that Plaintiff's state-law claims for assault and battery fail for the same

reason as his § 1983 excessive force claims. See Defendants' Memorandum of Law at 15-16;

Defendants' Reply Memorandum of Law at 10. "'[E]xcept for § 1983's requirement that the tort 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) (summary order) (quoting Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)); see also

Marcano v. City of Schenectady, 38 F. Supp. 3d 238, 263 (N.D.N.Y. 2014) (stating that,

"[e]ssentially, the Fourth Amendment excessive force standard applies to assault and battery claims

against a police officer under New York law" (citation omitted)). Since there is a genuine issue of

material fact as to whether Defendants Relation and Pardi used excessive force in violation of

§ 1983, the Court denies Defendants' motion for summary judgment with regard to Plaintiff's

assault and battery claims against those Defendants. Likewise, because Defendants have failed to

argue that, under New York State law, Defendant Hobson is not liable for failing to intervene in

Defendant Relation's and Defendant Pardi's alleged assault and battery of Plaintiff and that

Defendant Town of Niskayuna is not liable for the actions of Defendants Relation, Pardi, and

Hobson under a theory of respondeat superior, the Court denies Defendants' motion for summary

judgment with regard to Plaintiff's assault and battery claims against those Defendants as well.

3. Plaintiff's negligence claim

Defendants argue that Plaintiff's negligence claim must fail because "no reasonable finder of

fact could determine that the police officer[s'] contact with [P]laintiff was anything but intentional."

See Defendants' Memorandum of Law at 16; Defendants' Reply Memorandum of Law at 11.

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"When a plaintiff brings excessive force and assault claims which are premised upon a defendant's

allegedly intentional conduct, a negligence claim with respect to the same conduct will not lie."

Naccarato v. Scarselli, 124 F. Supp. 2d 36, 45 (N.D.N.Y. 2000) (citations omitted). Plaintiff has

only adduced evidence that Defendants Relation, Pardi and Hobson acted intentionally towards

him. See, e.g., Plaintiff's Memorandum of Law at 6 (alleging that Defendant Relation "forcefully

grabbed" Plaintiff when he pulled Plaintiff through the front driver's-side window; id. at 8 (alleging

that Defendant Pardi "grabbed" left arm and "forcefully twisted it to the small of Plaintiff's back");

id. at 17 (alleging that Defendant Hobson "arrived on scene and began holding Plaintiff's legs

down"). Therefore the Court grants Defendants' motion for summary judgment with regard to

Plaintiff's negligence claim. See Lee v. Cty. of Onondaga, No. 5:13-CV-1285-BKS-TWD, 2016

WL 9441472, *8 (N.D.N.Y. Aug. 19, 2016) (dismissing a plaintiff's negligence claim because "at

all times [the] [p]laintiff has alleged that Sergeant Murphy and Deputy Willis acted intentionally");

Hansel v. Sheridan, 991 F. Supp. 69, 76 (N.D.N.Y. 1998) (holding that, "[b]ecause plaintiff has

brought excessive force and assault and battery claims addressing defendants allegedly unlawful

use of force, the negligence claim must be dismissed (citations omitted)); Mazzaferro v. Albany

Motel Enters., Inc., 127 A.D.2d 374, 376 (3d Dep't 1987) (stating that "New York has adopted the

prevailing modern view that, once intentional offensive contact has been established, the actor is

liable for assault and not negligence, even when the physical injuries may have been inflicted

inadvertently" (citations omitted)).

IV. CONCLUSION

Having reviewed the entire file in this matter, the parties' submissions and the applicable

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law, and for the above-stated reasons, the Court hereby

ORDERS that Defendants’ motion for summary judgment, see Dkt. No. 23, is GRANTED

in part and DENIED in part; and the Court further

ORDERS that Defendants’ motion for summary judgment is GRANTED with regard to the

following claims: (1) Plaintiff cruel and unusual punishment claims against Officers Relation, Pardi

and Hobson under § 1983; (2) Plaintiff's municipal liability claim against Defendant Town of

Niskayuna under § 1983; and Plaintiff's state-law negligence claims against all Defendants; and the

Court further

ORDERS that Defendants’ motion for summary judgment is DENIED with regard to the

following claims: (1) Plaintiff's excessive force claims against Defendants Relation, Pardi and

Hobson under § 1983; (2) Plaintiff's state-law excessive force claims against all Defendants; and (3)

Plaintiff's state-law assault and battery claims against all Defendants; and the Court further

ORDERS that a telephone conference with the Court will be held on September 19, 2019,

at 10:00 a.m. to set a trial date for the remaining claims in this action. The Court will provide

counsel with the conference telephone call information prior to the date of the conference.

IT IS SO ORDERED.

Dated: September 4, 2019

Syracuse, New York

Senior United States District Judge

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