The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
DARNELL WILLIAMS,
Plaintiff,
v. 5:22-CV-0067
(GTS/ATB)
CITY OF SYRACUSE; DETECTIVE KAITLIN
HENDERSON; SERGEANT ALEX CAZZOLLI;
DETECTIVE MICHAEL SHANNON; and
DETECTIVE CHAD PICOTTE,
Defendants.
___________________________________________
APPEARANCES: OF COUNSEL:
SIVIN, MILLER & ROCHE LLP EDWARD SIVIN, ESQ.
Counsel for Plaintiff CLYDE RASTETTER, ESQ.
20 Vesey Street, Suite 1400 DAVID ROCHE, ESQ.
New York, NY 10007 GLENN D. MILLER, ESQ.
CITY OF SYRACUSE LAW DEPARTMENT TODD M. LONG, ESQ.
Counsel for Defendants DANIELLE R. SMITH, ESQ.
233 East Washington Street, 300 City Hall FINNEY RAJU, ESQ
Syracuse, NY 13202
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Darnell Williams
(“Plaintiff”) against The City of Syracuse, Detective Kaitlin Henderson, Sergeant Alex Cazzolli,
Detective Michael Shannon, and Detective Chad Picotte (“Defendants”), is Defendants’ motion
to dismiss Plaintiff’s Amended Complaint for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 16.) For the reasons set forth below,
Defendants’ motion is denied.
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I. RELEVANT BACKGROUND
A. Plaintiff’s Amended Complaint
Generally, in his Amended Complaint, Plaintiff alleges that he was wrongfully accused,
detained, and tried for Attempted Kidnapping in the Second Degree, Endangering the Welfare of
a Child, Menacing in the Second Degree, and Criminal Possession of a Weapon in the Fourth
Degree, arising from an alleged attempt to kidnap a nine-year-old girl in the City of Syracuse,
New York, on March 2, 2020. (Dkt. No. 11.) Further, after Plaintiff was detained pre-trial for
approximately seven months before posting bail on April 28, 2021, he was acquitted, in absentia,
of all charges by a jury. (Id.) Finally, Plaintiff alleges that Defendants fabricated evidence,
misrepresented and withheld information, which wrongfully led to his arrest and deprivation of
liberty. (Id.)
Based on these allegations, Plaintiff’s Amended Complaint asserts the following six
claims: (1) a claim of false arrest/imprisonment under New York State law asserted against all
individual Defendants and against Defendant City under the doctrine of vicarious liability; (2) a
claim of malicious prosecution under New York State law asserted against all individual
Defendants and against Defendant City under the doctrine of vicarious liability; (3) a claim of
wrongful search and seizure under the Fourth Amendment and 42 U.S.C. § 1983 asserted against
all individual Defendants; (4) a claim of denial of the right to fair trial under the Fifth, Sixth and
Fourteenth Amendments and 42 U.S.C. § 1983 asserted against all individual Defendants; (5) a
claim of failure to intervene under 42 U.S.C. § 1983; and (6) a claim of the wrongful withholding
of exculpatory evidence under the Fourteenth Amendment, Brady v. Maryland, and 42 U.S.C. §
1983 asserted against all individual Defendants. (Id.)
B. Parties’ Briefing on Defendants’ Motion
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1. Defendants’ Memorandum of Law
Generally, in their motion to dismiss the state law claims of the Amended Complaint,
Defendants assert two arguments: (1) Plaintiff’s two state-law claims should be dismissed
(against both Defendant City and the individual Defendants) because he has failed to satisfy a
condition precedent required by N.Y. General Municipal Law Section 50-h and he has failed to
allege such compliance as required by Fed. R. Civ. P. 9[c]; and (2) in any event, Plaintiff’s two
claims against Defendant City should be dismissed because the state-law claims against the
individual Defendants on which those two claims are based (under a theory of vicarious liability)
should be dismissed for failure to comply with the above-mentioned condition precedent. (Dkt.
No. 16, Attach. 6.)
More specifically, in support of their first argument, Defendants argue as follows: (a)
compliance with a demand for examination under N.Y. General Municipal Law Section 50-h is a
condition precedent to filing state claims against a municipality, because this requirement
contains no exception for a plaintiff’s invocation of the Fifth Amendment privilege against self-
incrimination;1 (b) soon after the examination had begun, Plaintiff invoked the Fifth Amendment
roughly a dozen times to avoid answering questions regarding his non-appearance at his trial in
April 2021, - which issue was relevant to, among other things, the extent of his deprivation of
liberty giving rise to his claims of malicious prosecution and false imprisonment and the
1 In this regard, Defendants argue that Plaintiff cannot use his Fifth Amendment privilege
as both a sword and a shield, depriving Defendant City of a proper defense. (Dkt. No. 16,
Attach. 6.) In support of this argument, Defendants cite cases dismissing a plaintiff’s state
claims against a municipality where the plaintiff had asserted his Fifth Amendment privilege
during the case: Guadagni v. New York City Transit Auth., 08-CV-3163, 2009 WL 205050, at *6
(E.D.N.Y. Jan. 27, 2009); Laverne v. Inc. Vill. of Laurel Hollow, 18 N.Y.2d 635, 638 (N.Y.
1966); Di Pompo v. City of Beacon Police Dep't, 153 A.D.3d 597, 598 (N.Y. App. Div., 2d Dept.
2017). (Dkt. No. 16, Attach. 6.)
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corresponding damages from those claims;2 and (c) Plaintiff may not cure the above-described
non-compliance by amending his Amended Complaint or seeking a stay of this action to
reschedule the Section 50-h examination until the conclusion of any criminal proceeding against
him for non-appearance at trial, because no such charge against him is pending or even
anticipated. (Id.)
2. Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiff asserts four arguments: (1)
because compliance with a Section 50-h examination is a condition precedent to bringing a state-
law claim against a municipality, not its employees, Defendants’ motion to dismiss is relevant to
claims made against only Defendant City (2) because the plain language of Section 50-h requires
that a plaintiff answer questions “relative to the occurrence and extent of the injuries or damages
for which claim is made,” and not every question to the full satisfaction of the defendant,
Plaintiff satisfied the condition precedent by submitting to more than three hours of questioning
during the Section 50-h examination; (3) the cases that Defendants rely on are distinguishable
from this case.
3. Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition, Defendants assert three arguments: (1)
Plaintiff is incorrect that compliance with General Municipal Law Section 50-h is a condition
precedent to commencing suit against only a municipality (and not also against its individual
employees), because state courts declare state law, and here the Fourth Department (in
2 Defendants also argue that Plaintiff’s answers are relevant to motive, credibility, and
impeachment. (Dkt. No. 16, Attach. 6.)
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Kluczynski v. Zwack, 170 A.D.3d 1656 [N.Y. App. Div. 4th Dep’t 2019]) dismissed a plaintiff’s
state law claims against individual employees acting in the scope of their duties based on the
plaintiff’s failure to comply with Section 50-h; (2) the rule set forth in Kluczynski reflects sound
principles of statutory construction by effectuating the purpose of the statute, which is
ascertained by also considering Section 50-e (which requires service of a notice of claim as a
condition precedent to filing a state-law claim against not only a municipality but its employees);
and (3) Section 50-h does not require that a claimant merely “submit[] to the demand for
examination,” but that a claimant disclose all relevant information about the claim, except
information protected from disclosure by a legitimate excuse. (Dkt. No. 24, Attach. 2.)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim
Under Fed. R. Civ. P. 12(b)(6)
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
204, 211 (N.D.N.Y. 2008).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
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established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second
Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice
pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d ed.
2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a
pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at
213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
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doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an
actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” Id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly,
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a pleading that only “tenders naked assertions devoid of further factual enhancement” will not
suffice. Id. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).
B. Legal Standard Governing the Filing of State-Law Claims Against a
Municipality
New York State General Municipal Law Section 50 governs the procedure for filing
state-law claims against municipalities and its employees. In particular, Section 50-e provides as
follows, in pertinent part:
1. When service required; time for service; upon whom service required.
(a) In any case founded upon tort where a notice of claim is
required by law as a condition precedent to the commencement of
an action or special proceeding against a public corporation, as
defined in the general construction law, or any officer, appointee or
employee thereof, the notice of claim shall comply with and be
served in accordance with the provisions of this section within
ninety days after the claim arises; except that in wrongful death
actions, the ninety days shall run from the appointment of a
representative of the decedent's estate.
(b) Service of the notice of claim upon an officer, appointee or
employee of a public corporation shall not be a condition precedent
to the commencement of an action or special proceeding against
such person. If an action or special proceeding is commenced
against such person, but not against the public corporation, service
of the notice of claim upon the public corporation shall be required
only if the corporation has a statutory obligation to indemnify such
person under this chapter or any other provision of law.
N.Y. Gen. Mun. Law § 50-e(1) (“Notice of claim”). In addition, Section 50-h provides as
follows, in pertinent part:
1. Wherever a notice of claim is filed against a city, county, town, village,
fire district, ambulance district or school district the city, county, town,
village, fire district, ambulance district or school district shall have the
right to demand an examination of the claimant relative to the occurrence
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and extent of the injuries or damages for which claim is made, which
examination shall be upon oral questions unless the parties otherwise
stipulate and may include a physical examination of the claimant by a duly
qualified physician.
. . . .
5. Where a demand for examination has been served as provided in
subdivision two of this section no action shall be commenced against the
city, county, town, village, fire district or school district against which the
claim is made unless the claimant has duly complied with such demand for
examination, which compliance shall be in addition to the requirements of
section fifty-e of this chapter.
N.Y. Gen. Mun. Law § 50-h(1),(5) (“Examination of claims”).
Under Fed. R. Civ. P. Rule 9(c), “plaintiff may aver generally that all conditions
precedent to suit have occurred, and any denial by defendant must be made specifically and with
particularity.” Hill v. Citibank Corp., 312 F. Supp. 2d 464, 473-74 (S.D.N.Y. 2004). “Once
defendant has challenged the condition precedent specifically and with particularity, the burden
is on plaintiff to prove that the condition precedent was satisfied.” Citibank Corp., 312 F. Supp.
2d at 473-74. As a condition precedent to bringing a state law claim against a municipality, a
plaintiff must file a Notice of Claim within ninety days after his claim accrues. N.Y. Gen. Mun.
L. § 50-e. After receiving the Notice of Claim, the municipality can demand a 50-h examination
to examine “the claimant relative to the occurrence and extent of the injuries or damages for
which claim is made.” N.Y. Gen. Mun. L.§ 50-h(1).
Generally, an examination under Section 50-h is limited in scope. Its purpose is to allow
the defendant the opportunity “to assess the general factual circumstances underlying a notice of
claim before the claimant ever files a lawsuit.” Bowling v. Nolette, 18-CV-0597, 2021 WL
4134733, at *7 (N.D.N.Y. Sept. 10, 2021). The purpose is “not designed to duplicate the broad
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and comprehensive method of obtaining disclosure provided for in the CPLR.” Alouette
Fashions, Inc. v. Consol. Edison Co., 119 A.D.2d 481, 487 (N.Y. App. Div., 1st Dept. 1986).
“[I]f the claimant fails to appear at the hearing or request an adjournment or postponement,” the
state law claims cannot proceed against the municipality. N.Y. Gen. Mun. L. § 50-h(5). Notice
of Claim requirements are construed strictly and failure to comply ordinally leads to dismal of
the state law causes of action. Hardy v. N.Y. City Health & Hosp. Corp., 164 F.3d 789, 793-94
(2d Cir.1999).
III. ANALYSIS
A. Whether N.Y. Gen. Mun. Law Section 50-h Applies to Claims Against Municipal
Employees
After carefully considering the matter, the Court answers the question in the negative for
the reasons stated in Plaintiff’s opposition memorandum of law. See, supra, Part I.A.2. of this
Decision and Order. To those reasons, the Court adds the following analysis.
Before analyzing the intent of a statute, the Court must first determine whether the
statute’s plain meaning is ambiguous. Here, based on the plain language of Sections 50-e and
50-h, the former includes the term “any officer, appointee or employee thereof” of the
municipality, while the latter does not. The Court has trouble construing this inconsistency as an
ambiguity rather than as an intentional choice.3 Even if this were not the case, the Court would
have trouble reading the above-referenced term into Section 50-h, based on the dearth of
legislative history or commentary offered by Defendants.
3 For example, although Section 50-h states that its requirements “shall be in addition to
the requirements of section fifty-e of this chapter,” the Court interprets that statement as
requiring merely that the examination-of-claim requirement of Section 50-h must be satisfied
even if the notice-of-claim requirement of Section 50-e is satisfied (not that a term explicitly
used in Section 50-e be implicitly inserted in Section 50-h).
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Nothing in the cases cited by the parties changes the Court’s hesitancy to find that
Section 50-h applies to claims against municipal employees. Generally, the majority of cases
hold that claims against municipal employees do not require a Section 50-h hearing, and
therefore if a plaintiff failed to comply with Section 50-h, then only his state law claims against
the municipality, not the individual employees, should be dismissed. For example, Plaintiff cites
Bradley v. Golphin, in support of his position that Section 50-h does not apply to claims against
municipal employees. Bradley v. Golphin, 14-CV-4289, 2018 WL 480754 (E.D.N.Y. Jan. 18,
2018). In Bradley, the Eastern District of New York dissected the language of the Section 50-h,
directly opined on this matter, and concluded that the legislature was intentional in its omission
of employees and officers from the condition precedent. Bradley, 2018 WL 480754, at *10-11.
Moreover, at least four other district court cases from within the Second Circuit have come to the
same conclusion—that the omission of this language was intentional. Gilliard v. City of New
York, 10-CV-5187, 2013 WL 521529, at *15 (E.D.N.Y. Feb. 11, 2013); Bird v. Cnty. of
Westchester, 20-CV-10076, 2022 WL 2263794, at *13 (S.D.N.Y. June 23, 2022); Nolan v. Cnty.
of Erie, 19-CV-01245, 2020 WL 1969329, at *6 (W.D.N.Y. Apr. 24, 2020); Othman v. City of
New York, 13-CV-0477, 2018 WL 1701930, at *4 (E.D.N.Y. Mar. 31, 2018).
In response, Defendants argues that the issue is controlled by two state court cases that
dismissed a claim against municipal employees because of the plaintiff’s failure to attend a
Section 50-h examination: Kluczynski v. Zwack, 170 A.D.3d 1656 (N.Y. App. Div., 4th Dep’t
2019); Ross v. Cnty. of Suffolk, 84 A.D.3d 775 (N.Y. App. Div., 2nd Dep’t 2011). The problem is
that, in Kluczynski v. Zwack, the Fourth Department merely cited the rule that “a plaintiff who
has not complied with General Municipal Law § 50-h (1) is precluded from maintaining an
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action against a municipality,” and applied it to both a municipality and municipal defendants
“who were acting within the scope of their duties as municipal employees.” Kluczynski v.
Zwack, 170 A.D.3d 1656, 1657 (N.Y. App. Div., 4th Dep’t 2019). Setting aside the fact that the
individual Defendants in the case before the Court have been sued not merely in their official
capacities but also in their individual capacities (Dkt. No. 11, at ¶ 20a [Plf.’s Am. Compl.]), the
fact remains that the Fourth Department provided no explanation of why the claims against
municipal defendants were included in the dismissal. Similarly, in Ross v. Cnty. of Suffolk, the
Second Department provided even less explanation for why it dismissed the claims against the
individual defendants (who were not even expressly identified as municipal employees).
Defendants also rely on G.D.S. ex rel. Slade v Northport-E. Northport Union Free Sch.
Dist., in which the Eastern District of New York dismissed a claim against a school district and
its employees for plaintiff’s failure to appear for a Section 50-h examination. G.D.S. ex rel.
Slade v Northport-E. Northport Union Free Sch. Dist, 915 F. Supp. 2d 268, 281 (E.D.N.Y.
2012). Contrary to Defendants’ assertion, this case actually weakens their position because the
Eastern District’s rationale for not preserving the claim against individual defendants was that
Plaintiff did not sue Defendants in their individual capacities.4 Here, Plaintiff expressly did sue
Defendants in their individual capacities.5
4 As the Eastern District explained, “The Plaintiff's argument that the notice-of-claim
provisions do not apply to the individual Defendants, McDermott and McLaughlin, because
some of their actions might have been conducted outside the scope of their employment is
unavailing, since his Complaint specifically alleges that “[a]t all relevant time[s], the Defendants
who are employees of the School District were acting within the scope of their employment.”
G.D.S. ex rel. Slade., 915 F. Supp. 2d at 281.
5 As the Amended Complaint alleges, “[T]he claims asserted herein against Henderson,
Cazzoli, Shannon, and Picotte are brought against these defendants in their individual
capacities.” (Dkt. No. 11.)
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For all of these reasons, the Court finds that Section 50-h does not apply to Plaintiff’s
state-law claims against the individual Defendants.
B. Whether Plaintiff’s Invocation of His Fifth Amendment Privilege Rendered
Him Noncompliant with N.Y. Gen. Mun. Law Section 50-h
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s opposition memorandum of law. See, supra, Part I.A.2. of this
Decision and Order. To those reasons, the Court adds the following analysis.
Through their motion, Defendants have placed at issue the term “duly complied with” in
the following language of Section 50-h: “[N]o action shall be commenced against the city,
county, town, village, fire district or school district against which the claim is made unless the
claimant has duly complied with such demand for examination, which compliance shall be in
addition to the requirements of section fifty-e of this chapter.” N.Y. Gen. Mun. Law § 50-h(5).
Defendants argue that “duly complied with” means that the claimant disclosed all
relevant information about the claim, except information protected from disclosure by a
legitimate excuse. (Dkt. No. 24, Attach. 2.) They argue that Plaintiff was therefore non-
compliant with Section 50-h when he invoked his Fifth Amendment rights during questioning
about his absence at trial, because his absence is relevant to his state-law claims. Specifically,
they argue that both the extent he was deprived of his liberty during trial and the resulting
damages from that deprivation are relevant to his claims of malicious prosecution and false
arrest/imprisonment.
Plaintiff argues that the Fifth Amendment is viable at all legal proceedings, and all that is
required to comply with Section 50-h is attendance at the hearing, not to answer every question
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to a defendant’s satisfaction. Plaintiff further argues that the proper time for questions regarding
his whereabouts during his trial is during the discovery phase.
This Court agrees with Defendants that compliance with Section 50-h requires Plaintiff to
both attend the examination and answer relevant questions about his claims. However, just
because an answer is relevant to a claim does not mean that it is required at a Section 50-h
examination. The First Department explained the distinction eloquently in Alouette Fashions,
Inc. v. Consol. Edison Co.:
It must be noted that the initial hearing to which a municipality is entitled
pursuant to General Municipal Law § 50-h is not designed to duplicate the
broad and comprehensive method of obtaining disclosure provided for in
the CPLR. The purpose of the hearing, as a supplement to the notice of
claim, is to afford the city an opportunity to early investigate the
circumstances surrounding the accident and to explore the merits of the
claim, while information is readily available, with a view towards
settlement.
Alouette Fashions, Inc. v. Consol. Edison Co., 119 A.D.2d 481, 487 (N.Y. App. Div., 1st Dept.
1986).
The cases relied upon by Defendants (supporting the argument that invoking the Fifth
Amendment during a Section 50-h hearing is non-compliant) are easily distinguishable from the
case before this Court. In Di Pompo v. City of Beacon Police Dep’t, the plaintiff refused to
answer a particular set of questions, but never invoked his Fifth Amendment rights and his
failure to do so during the hearing waived that opportunity. 153 A.D.3d 597 (N.Y. App. Div., 2d
Dep’t 2017). In Guadagni v. N.Y.C. Transit Auth., the plaintiff altogether failed to attend the
Section 50-h examination and attempted to justify his absence by invoking the Fifth Amendment,
clearly depriving defendants of a proper defense. Guadagni v. New York City Transit Auth., No.
08-CV-3163, 2009 WL 1910953, at *8 (E.D.N.Y. June 30, 2009).
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The purpose of a Section 50-h examination is neither to have every question answer to a
defendant’s satisfaction, nor is it to duplicate discovery. The purpose is but “to assess the
general factual circumstances underlying a notice of claim,” and to allow the municipality to
investigate and explore the claim’s merits. Bowling, 2021 WL 4134733, at *7. During the
examination, Plaintiff answered Defendants’ questions for more than three hours on relevant
topics, providing Defendants ample information to “assess the factual circumstances” of
plaintiff's claims. He refused to answer a dozen questions on one topic, because of the criminal
implications of those answers. Plaintiffs deprivation of liberty during the few days of his trial is
not relevant to assessing damages for his state law claims at this stage of litigation. It is beyond
the scope and purpose of a Section 50-h hearing.® However, an exact damages assessment may
be more relevant during the discovery phase (as noted by Plaintiff in his reply memorandum of
law).
For all of these reasons, the Court finds that Plaintiff's invocation of his Fifth
Amendment privilege did not render him noncompliant with Section 50-h.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss Plaintiff's Amended Complaint for
failure to state a claim for which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt.
No. 16) is DENIED.
Dated: January 27, 2023 tttey—
Syracuse, New York Glenn T. Suddaby
U.S. District Judge
6 Plaintiff was deprived of his liberty for roughly seven months. The difference in a
damages calculation if Plaintiff was able to travel freely during his few days of trial would likely
be minimal.
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