# Johnson v. New York State Police

> District Court, N.D. New York · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10315731

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10315731

## How later opinions describe it (automated extraction)

- holding that “seizures” qualify as a “physical or mental impairment”
- explaining that false arrest claims are grounded in the Fourth Amendment right to be free from “unreasonable seizures”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

ROBBIE C. JOHNSON, individually
and as Administrator of the Estate
of Tyler R. Johnson, Deceased, and
ASHLEY E. RUSSELL, guardian on
behalf of H.M.J., minor daughter of
Tyler R. Johnson,

Plaintiffs,

-v- 6:22-CV-343

NEW YORK STATE POLICE,
NEW YORK STATE TROOPER
ROBERT C. ANNARINO, in his
official and individual capacities,
ONEIDA COUNTY SHERIFF’S
DEPUTY EMRAH LATIC, in his
individual capacity, AMCARE
AMBULANCE SERVICE, a
domestic company, PAUL W.
TAYLOR, an employee of AmCare,
and THE COUNTY OF ONEIDA,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES: OF COUNSEL:

BELDOCK, LEVINE & HOFFMAN JONATHAN C. MOORE, ESQ.
Attorneys for Plaintiffs JEFFREY F. KINKLE, ESQ.
99 Park Avenue, 26th Floor
New York, NY 10016
FRIEDMAN, GILBERT SARAH J. GELSOMINO, ESQ.
& GERHARDSTEIN, LLC TERRY H. GILBERT, ESQ.
Attorneys for Plaintiffs
50 Public Square, Suite 1900
Cleveland, OH 44113

HON. LETITIA JAMES CHRISTOPHER HUMMEL, ESQ.
New York State Attorney General ROBERT J. ROCK, ESQ.
Attorneys for Defendants New York Ass’t Attorneys General
State Police and New York State
Trooper Robert C. Annarino
The Capitol
Albany, NY 12224

KENNEY SHELTON DAVID H. WALSH, IV, ESQ.
LIPTAK NOWAK LLP DANIEL CARTWRIGHT, ESQ.
Attorneys for Defendants Oneida
County Sheriff’s Deputy Emrah
Latic and the County of Oneida
4615 North Street
Jamesville, NY 13078

SMITH, SOVIK, KENDRICK STEVEN W. WILLIAMS, ESQ.
& SUGNET, P.C. - Syracuse Office
Attorneys for Defendants AmCare
Ambulance Service and Paul W. Taylor
250 South Clinton Street, Suite 600
Syracuse, NY 13202

DAVID N. HURD
United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................... 4
II. BACKGROUND ....................................................................................... 5
III. LEGAL STANDARDS ............................................................................. 9
A. Rule12(b)(1) ......................................................................................9
B. Rule 12(b)(6) .....................................................................................9
IV. DISCUSSION ......................................................................................... 10
A. Section 1983 Claims ...................................................................... 13
1. State Defendants ...................................................................... 13
2. County Defendants ................................................................... 15
i. Deputy Latic ........................................................................ 16
a. Unlawful Seizure and Excessive Force ..................... 17
b. Failure to Intervene ................................................... 20
ii. The County ........................................................................ 22
a. Widespread Practice .................................................. 24
a. Failure to Train or Supervise .................................... 25
B. Disability Claims ........................................................................... 26
1. State Defendants ...................................................................... 27
i. Trooper Annarino ................................................................. 28
ii. The State Police .................................................................... 29
a. Merits .......................................................................... 30
b. Eleventh Amendment ................................................. 32
2. County Defendants ................................................................... 36
i. Qualified Individual with a Disability ................................ 37
ii. Intentional Discrimination ................................................. 41
C. State Law Claims .......................................................................... 43
1. Negligence ................................................................................. 43
2. Pain and Suffering .................................................................... 45
3. Infliction of Emotional Distress ............................................... 45
4. Wrongful Death ......................................................................... 47
V. CONCLUSION ........................................................................................... 51
DECISION and ORDER

I. INTRODUCTION
This civil rights action arises from the untimely death of Tyler R. Johnson
(“Tyler” or “decedent”). Tyler, a 24-year-old man who suffered from a serious,
disabling seizure disorder, was shot and killed in his home by a New York
State Police (“State Police”) Trooper named Robert C. Annarino (“Trooper

Annarino”). Trooper Annarino had been dispatched to Tyler’s house in
response to a call for medical assistance made by a family member after he
was found lying unresponsive on his bed the evening of April 16, 2020.
On April 11, 2022, plaintiffs Robbie C. Johnson (“Robbie” or “Johnson”),

Tyler’s father and the administrator of his estate, and Ashley E. Russell
(“Russell”), the mother and adult guardian of Tyler’s minor daughter H.M.J.
(collectively “plaintiffs”), filed this civil action against the State Police,
Trooper Annarino, the County of Oneida (“the County”), County Sheriff’s

Deputy Emrah Latic (“Deputy Latic”), AmCare Ambulance Service
(“AmCare”), and AmCare employee Paul W. Taylor (“Paramedic Taylor”).
Plaintiffs’ thirteen-count complaint alleges 42 U.S.C. § 1983 claims for
unlawful seizure and excessive force (Counts One and Two), a failure to

intervene (Count Three), municipal liability (Count Six), and a violation of
substantive due process (Count Twelve). The complaint alleges claims under
Title II of the Americans with Disability Act (“ADA”) and Section 504 of the
Rehabilitation Act (Counts Four and Five). Finally, the complaint alleges
state law claims for negligence (Counts Seven and Eight), pain and suffering

(Count Nine), the negligent infliction of emotional distress (Count Ten),
vicarious liability (Count Eleven), and wrongful death (Count Thirteen).
On June 15, 2022, the State Police and Trooper Annarino (collectively the
“State defendants”) moved to dismiss the complaint under Federal Rules of

Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6). Dkt. No. 29. The County and
Deputy Latic (collectively the “County defendants”) have also filed a motion
to dismiss under Rule 12(b)(6). Dkt. No. 30. Both motions have been fully
briefed and will be considered on the basis of the submissions without oral

argument.1
II. BACKGROUND
Prior to the events that resulted in his death, Tyler lived with his father,
Robbie, and his father’s girlfriend, Melissa Howard, at 4989 Golly Road in the

Town of Lee, New York. See Compl. ¶ 22. Tyler “had suffered for many
years” from seizures. Id. ¶ 18. These seizures caused his muscles to stiffen
and jerk. Id. These seizures also caused him to lose consciousness. Id.
On April 16, 2020, at around 7:00 o’clock in the evening, Robbie went into

Tyler’s bedroom to check on him and found Tyler lying unresponsive on his

1 The State defendants did not reply. The time period in which to do so has expired. See Dkt.
No. 34.
bed. Compl. ¶ 23. Robbie recognized Tyler’s symptoms to be consistent with
the onset of a seizure, so he shouted to Ms. Howard to call 911. Id. ¶ 24. Ms.

Howard call 911, asked for medical assistance, and told the 911 dispatcher
that Tyler was “breathing but not responding.” Id. ¶ 25. Ms. Howard also
told the 911 dispatcher that Tyler “might have been experiencing a drug
overdose” but that he also had “a seizure disorder.” Id. ¶ 26.

Shortly after Ms. Howard first called 911, Ashley Johnson, Tyler’s sister,
arrived at the house. Compl. ¶ 27. Ashley was familiar with the symptoms
of Tyler’s seizures. Id. She saw that Tyler was “lying on his left side with his
arms across his chest and his fists clenched.” Id. She also saw that he “was

drenched in sweat and light purple and that his eyelids were twitching.” Id.
Ashley recognized that these were the “typical symptoms” of one of Tyler’s
seizures. Compl. ¶ 27. She told Ms. Howard, who “got back on the line” with
911 and informed the 911 dispatcher that Tyler was in fact experiencing one

of his seizures. Id. ¶ 28. According to the complaint, the 911 dispatch log
indicates that the 911 dispatcher “updated the police department” with this
additional, important information. Id. ¶ 29.
This was hardly Tyler’s first seizure. See Compl. ¶ 30. The Johnson

family had called 911 many times in the past when Tyler experienced one of
these seizures. Id. But each time that the Johnson family had called 911 in
the past, medical personnel had responded to their call for assistance. Id.
This time, however, Trooper Annarino responded to the 911 call for
medical assistance. Compl. ¶ 31. When Trooper Annarino arrived at the

Johnson family’s house, Robbie was kneeling on the floor next to his son’s bed
“rubbing his back, arms, and head to calm him down” in a manner that was
consistent with Robbie’s understanding of how to help someone experiencing
a seizure. Id. ¶¶ 32–33. Robbie also informed Trooper Annarino that Tyler

was having a seizure. Id. ¶ 34.
Even so, Trooper Annarino ordered everyone out of the room. Compl. ¶ 35.
He then grabbed Tyler’s shoulders and attempted—and failed—to push Tyler
onto his back. Id. ¶ 36. Trooper Annarino’s approach to Tyler’s seizure was

in “direct contravention of medical best practices.” Id. Trooper Annarino
then radioed dispatch to advise that the scene was secure and that someone
from Emergency Medical Services (“EMS”) could enter Tyler’s room. Id. ¶ 37.
Paramedic Taylor was on duty that day. Compl. ¶ 38. He had been to the

Johnson’s house before. Id. ¶ 39. He had responded to other medical calls
about Tyler’s seizure disorder. Id. So Paramedic Taylor was well aware of
Tyler’s medical condition and his prior history of seizures. Id. Indeed, when
Paramedic Taylor entered the bedroom, Trooper Annarino even advised him

that he also believed Tyler was having a seizure. Id. ¶ 43.
Despite the fact that it was inappropriate to do so, Trooper Annarino
again attempted to forcefully push Tyler onto his back. Compl. ¶ 44. And
although Paramedic Taylor knew this approach was a totally inappropriate
way to treat a person experiencing a seizure, he chose to assist Trooper

Annarino in “forcibly restraining” Tyler by “grabbing his right leg.” Id. ¶ 45.
According to the complaint, despite being a trained medical officer Paramedic
Taylor failed to instruct or advise Trooper Annarino about the medically
appropriate way to deal with a person experiencing a seizure. Id. ¶ 46.

At this time, Tyler’s seizure began to subside. Compl. ¶ 48. But he was
still disoriented and confused. Id. He did not know why Trooper Annarino
and Paramedic Taylor were pushing him down or grabbing his leg. Id. He
told both defendants to get off of him. Id. ¶ 49. He tried to sit up. Id. ¶ 50.

Neither Trooper Annarino nor Paramedic Taylor released their grip on
Tyler. Compl. ¶ 50. So Tyler began to struggle against them. Id. Deputy
Latic arrived while this was happening. Id. ¶ 52. Deputy Latic began to help
Trooper Annarino and Paramedic Taylor hold Tyler down. Id. ¶ 53. Deputy

Latic managed to get his arms wrapped around Tyler’s legs. Id. ¶ 54.
While Deputy Latic and Paramedic Taylor wrestled with Tyler’s legs,
Trooper Annarino fired three gunshots at decedent. Compl. ¶ 54. Decedent
fell to the floor on his hands and knees. Id. ¶ 55. Trooper Annarino fired two

more gunshots at decedent. Id. ¶ 56. Robbie, decedent’s father, was in the
immediate vicinity of the encounter and witnessed his son’s death. Id. ¶ 57.
Decedent was taken to Rome Memorial Hospital, unresponsive and in full
cardiac arrest. Compl. ¶ 60. He was pronounced dead at 8:02 p.m. Id. The

proximate cause of his death was determined to be the injuries he sustained
as a result of Trooper Annarino’s gunshots. Id. ¶ 61.
III. LEGAL STANDARDS
A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under
Rule 12(b)(1) when the district court lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000). “The plaintiff bears the burden of proving subject matter

jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure,
290 F.3d 493, 497 (2d Cir. 2002)).
B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual
allegations must be enough to elevate the plaintiff’s right to relief above the
level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So
while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). In short, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In doing so, the court generally confines itself to the facts alleged in
the pleading, any documents attached to the complaint or incorporated into it
by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.
v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
IV. DISCUSSION
Broadly speaking, plaintiffs’ thirteen-count complaint asserts three

distinct kinds of claims: (A) civil rights claims under § 1983; (B) disability
claims under Title II of the ADA and Section 504 of the Rehabilitation Act;
and (C) a variety of state law tort claims.2
First, plaintiffs allege § 1983 claims against Trooper Annarino and Deputy

Latic for unlawful seizure and excessive force (Counts One and Two) and for
a violation of substantive due process (Count Twelve). The complaint also
alleges a § 1983 claim against Deputy Latic for a failure to intervene in

2 As the State defendants point out in their moving papers, certain claims are held by certain
named plaintiffs and not others (e.g., the wrongful death claim is held by decedent’s minor daughter
as a distributee of his estate). But both motions seek dismissal of certain claims, not certain
plaintiffs, and so the analysis that follows focuses on the claims asserted in the pleading.
Trooper Annarino’s use of force (Count Three). Finally, the complaint alleges
a § 1983 municipal liability claim against the County (Count Six).

Second, the complaint alleges disability-related claims under Title II of the
ADA and Section 504 of the Rehabilitation Act against the State Police and
the County (Count Four) and against Trooper Annarino in his official
capacity (Count Five).

Third, the complaint alleges claims against AmCare for negligent hiring,
training and/or discipline (Count Seven) and for vicarious liability (Count
Eleven). The complaint alleges claims against Paramedic Taylor, Trooper
Annarino, and Deputy Latic for negligence (Count Eight), pain and suffering

(Count Nine), and the infliction of emotional distress (Count Ten). Finally,
the complaint alleges a claim against AmCare, Paramedic Taylor, Trooper
Annarino, and Deputy Latic for wrongful death (Count Thirteen).
The State defendants have moved to dismiss the claims under Title II of

the ADA and Section 504 of the Rehabilitation Act asserted against them
(Counts Four and Five) as barred by the Eleventh Amendment. State Defs.’
Mem., Dkt. No. 29-1 at 3, 6–9.3 In the alternative, the State defendants
argue these claims should be dismissed for failure to state a plausible claim

for relief. Id. at 9–11. As for plaintiffs’ § 1983 claims, the State defendants

3 Pagination corresponds to CM/ECF.
argue that the substantive due process claim asserted against Trooper
Annarino (in Count Twelve) must be dismissed as duplicative of the excessive

force claim pleaded against him (in Count One). Id. at 11–13. Finally, the
State defendants argue the Court should decline to exercise supplemental
jurisdiction over plaintiffs’ state law claims against Trooper Annarino
(Counts Eight, Nine, Ten, and Thirteen) or, failing that, the Court should

dismiss those claims on the merits. Id. at 14–16.
The County defendants have moved to dismiss all of the claims asserted
against them. County Defs.’ Mem., Dkt. No. 30-1 at 9. According to the
County defendants, plaintiffs’ § 1983 claims against Deputy Latic (Counts

Two, Three, and Twelve) fail as a matter of law. Id. at 10–15, 24–28. The
County defendants also argue that plaintiffs’ § 1983 municipal liability claim
against the County (Count Six) should be dismissed because it relies on
nothing more than “boilerplate” allegations. Id. at 18–20. The County

defendants further contend that the disability claims that are asserted
against the County (Count Four) should be dismissed for failure to state a
claim. Id. at 16–20. Finally, the County defendants argue that the state law
tort claims asserted against Deputy Latic (Counts Eight, Nine, Ten, and

Thirteen) fail on the merits. Id. at 21–28.
A. Section 1983 Claims
The complaint alleges § 1983 claims against Trooper Annarino and Deputy

Latic for unlawful seizure and excessive force (Counts One and Two) and for
a violation of substantive due process (Count Twelve). The complaint also
alleges a § 1983 claim against Deputy Latic for a failure to intervene in
Trooper Annarino’s use of deadly force (Count Three). Finally, the complaint

alleges a § 1983 municipal liability claim against the County (Count Six).
1. State Defendants
As an initial matter, the State defendants have not moved to dismiss
plaintiffs’ § 1983 individual-capacity claim against Trooper Annarino for

unlawful seizure and excessive force (Count One). Accordingly, that claim
remains for discovery.
However, the State defendants have moved to dismiss plaintiffs’ § 1983
individual-capacity claim against Trooper Annarino alleging the violation of

substantive due process (Count Twelve). According to the State defendants,
this claim is duplicative of the unlawful seizure and excessive force claim
alleged in Count One. State Defs.’ Mem. at 11–13. In the alternative, the
State defendants argue that this claim fails on the merits. Id.

Plaintiffs’ § 1983 substantive due process claim is based on the “right to be
free from wrongful government interference with familial relationships and
to companionship, society, and support.” Compl. ¶ 132. As relevant here,
“[t]he Fourteenth Amendment guarantees a substantive right under the Due
Process Clause to intimate familial association.” Gorman v. Rensselaer Cnty.,

910 F.3d 40, 47 (2d Cir. 2018). To state a § 1983 “intimate association” claim,
plaintiffs must allege: (1) conduct “so shocking, arbitrary, and egregious that
the Due Process Clause would not countenance it even were it accompanied
by full procedural protection;” and (2) that the “state action was specifically

intended to interfere with the family relationship.” Id. at 47–48.
Measured against Gorman’s requirements, plaintiffs’ § 1983 “intimate
association” claim must be dismissed. Although the complaint alleges that
Trooper Annarino “intentionally” interfered with the Johnson family’s right

to familial association when he ordered everyone out of decedent’s room and
then used deadly force against him, compl. ¶¶ 132–33, the complaint fails to
plausibly allege that this interference was anything more than “indirect and
incidental” to defendant’s other alleged conduct, Gorman, 910 F.3d at 48.

Importantly, the Second Circuit has cautioned that an “intimate
association” claim requires direct, intentional conduct that was “specifically
intended” to interfere in the familial relationship itself. To be sure, plaintiffs
have alleged serious misconduct: the unprovoked shooting death of decedent

during a medical episode. But plaintiffs have not alleged the specific kind of
misconduct required to state a plausible “intimate association” claim.
For instance, plaintiffs have not alleged that Tyler’s father protested
Trooper Annarino’s order to leave the bedroom or indicated that he desired to

remain in the room with decedent at the time of the events that led to Tyler’s
death. Albert v. City of N.Y., 2019 WL 3804654, at *4 (E.D.N.Y. Aug. 13,
2019) (rejecting “intimate association” claim for similar reasons).
Nor have plaintiffs alleged that Trooper Annarino’s misconduct was

directed at the Johnson’s familial relationship itself. Albert, 2019 WL
3804654, at *3 (“Where the defendants were motivated by other legitimate
interests—rather than an intent to deprive the plaintiff of [his] rights to
associate with [ ] family members—such a claim cannot survive.”).

In short, the “complaint is devoid of facts that would plausibly suggest
that interference with the family relationship was anything other than an
incidental consequence of defendants’ actions.” Albert, 2019 WL 3804654, at
*4 (citation omitted); see also Ranta v. City of N.Y., 2015 WL 5821658, at *7

(E.D.N.Y. Sept. 30, 2015) (rejecting “intimate association” claim where
complaint alleged conduct that had “only an incidental effect” on the familial
relationship). Accordingly, plaintiffs’ § 1983 substantive due process claim
against Trooper Annarino (Count Twelve) must be dismissed.

2. County Defendants
As noted supra, plaintiffs allege § 1983 individual-capacity claims against
Deputy Latic for unlawful seizure and excessive force (Count Two), for the
failure to intervene in Trooper Annarino’s use of force (Count Three), and for
a violation of substantive due process (Count Twelve). The complaint also

alleges a § 1983 municipal liability claim against the County (Count Six).
The County defendants have moved to dismiss all four of these § 1983
claims. According to the County defendants, plaintiffs’ § 1983 claims against
Deputy Latic (Counts Two, Three, and Twelve) fail on the merits. County

Defs.’ Mem. at 10–15, 24–28. The County defendants also argue the § 1983
municipal liability claim against the County (Count Six) should be dismissed
because it relies on nothing more than “boilerplate” allegations. Id. at 18–20
In opposition, plaintiffs concede that their § 1983 claim against Deputy

Latic alleging a violation of substantive due process (Count Twelve) should be
dismissed. Pls.’ Opp’n to County, Dkt. No. 36 at 6 n.1. Accordingly, Count
Twelve will be dismissed against Deputy Latic. However, plaintiffs oppose
the dismissal of the other § 1983 claims. See generally id.

i. Deputy Latic
Plaintiffs allege § 1983 claims against Deputy Latic for unlawful seizure
and excessive force (Count Two) and for the failure to intervene in Trooper
Annarino’s use of force (Count Three).
a. Unlawful Seizure and Excessive Force4 (Count Two)
“Claims that law enforcement officers have used excessive force in the

course of an arrest, investigatory stop, or other seizure of a free citizen are
analyzed under the Fourth Amendment[.]” Kaplan v. Cnty. of Orange, 528 F.
Supp. 3d 141, 170 (S.D.N.Y. 2021) (cleaned up).
“To succeed on a § 1983 excessive force claim, a plaintiff must show that

the defendant’s use of force was objectively unreasonable in light of the facts
and circumstances confronting them, without regard to their underlying
intent or motivation.” LaFever v. Clarke, 525 F. Supp. 3d 305, 331 (N.D.N.Y.
2021) (cleaned up). This “objective reasonableness” inquiry is “necessarily

case and fact specific and requires balancing the nature and quality of the
intrusion on the plaintiff’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Id. at 331 (citation omitted).
Thus, review of an excessive force claim is “guided by consideration of at

least three factors: (1) the nature and severity of the crime leading to the
arrest, (2) whether the suspect poses an immediate threat to the safety of the

4 Plaintiffs style this claim as “unlawful seizure and excessive force.” These are often treated as
two distinct Fourth Amendment claims: a plaintiff often alleges an excessive use of force during the
course of an allegedly unauthorized arrest. See, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(explaining that false arrest claims are grounded in the Fourth Amendment right to be free from
“unreasonable seizures”). Here, however, plaintiffs allege excessive force was used during the course
of an unreasonable seizure that ended with decedent’s death. However characterized, this claim
triggers the Fourth Amendment’s protections. Cf. Torres v. Madrid, 141 S. Ct. 989, 993 (2021).
officer or others, and (3) whether the suspect was actively resisting arrest or
attempting to evade arrest by flight.” LaFever, 525 F. Supp. 3d at 331.

Plaintiffs allege that when Deputy Latic first arrived on scene, he assisted
Trooper Annarino and Paramedic Taylor in holding Tyler down by wrapping
his arms around decedent’s legs. Compl. ¶¶ 48–58. Plaintiffs further allege
that Deputy Latic continued to struggle and try to hold Tyler down while

Trooper Annarino shot him five times in two separate volleys of gunfire. Id.
Upon review, these facts are sufficient to plausibly allege that Deputy
Latic violated decedent’s Fourth Amendment rights. Where, as here, “a
defendant has moved to dismiss an excessive force claim at the pleadings

stage, dismissal is only appropriate if, accepting all of the allegations as true,
it is clear that the force used by the officer[ ] was objectively reasonable under
the circumstances.” Kaplan, 528 F. Supp. 3d at 170 (citation omitted).
Deputy Latic has not done so. Plaintiffs allege Deputy Latic used physical

force in an ongoing attempt to restrain decedent, who was not suspected of
any crime, did not pose any immediate threat to anyone’s safety, and was not
attempting to flee but was instead known by officers to be recovering from a
serious medical episode. Under those facts, it is impossible to conclude that

Deputy Latic’s alleged conduct was “objectively reasonable” as a matter of
law. Indeed, it is hard to fathom how the use of any force was warranted
under those circumstances.
To avoid this obvious conclusion, the County defendants rely on Norwood
v. Graham, 2020 WL 7480943 (N.D.N.Y. Dec. 18, 2020). In Norwood, the pro

se plaintiff was arrested by multiple officers on the basis of an active parole
arrest warrant. Id. at *1. The plaintiff alleged, inter alia, that officers had
used excessive force against him because one officer restrained the plaintiff
while another officer placed him in handcuffs. Id. On summary judgment,

Judge D’Agostino dismissed the plaintiff’s excessive force claim against the
officer who restrained the plaintiff because, under the circumstances, the
officer’s conduct was objectively reasonable as a matter of law. Id. at *3.
But those are not the facts alleged by plaintiffs in this case, and this is not

summary judgment. “Whether [the] use of force was justified under the
circumstances – for example, whether and to what extent [decedent] ever
posed a threat to [officer] safety, and whether [Deputy Latic’s] response was
proportionate to that threat – requires a detailed and fact-specific inquiry,

and would be inappropriate for this Court to decide at the motion to dismiss
stage.” Ocasio v. City of Canandaigua, 513 F. Supp. 3d 310, 321 (W.D.N.Y.
2021); see also Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020) (opining that
the fact-specific nature of excessive force claims often warrants discovery and

a trial on the merits). Accordingly, the County defendants’ motion to dismiss
plaintiffs’ § 1983 excessive force claim against Deputy Latic will be denied.
b. Failure to Intervene (Count 3)
“[A]ll 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.” Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994). “A police officer therefore can be held liable for his failure to
intervene if he or she observes the use of excessive force and has sufficient

time to act but takes no steps to prevent it.” Merrill v. Schell, 279 F. Supp.
3d 438, 445 (W.D.N.Y. 2017).
“To state a claim for failure to intervene, a complaint must plead that
‘(1) the officer had a realistic opportunity to intervene and prevent the harm;

(2) a reasonable person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer does not take
reasonable steps to intervene.’” Rosario v. City of N.Y., 2019 WL 4450685, at
*7 (S.D.N.Y. Sept. 16, 2019) (citations omitted).

Plaintiffs acknowledge that Deputy Latic did not arrive on the scene until
after Trooper Annarino and Paramedic Taylor had already began struggling
with decedent. Compl. ¶¶ 50–51. However, plaintiffs allege that Deputy
Latic entered the room before Trooper Annarino used deadly force. Id. ¶ 52.

They further allege that Deputy Latic had “sufficient time” to intercede on
decedent’s behalf; e.g., plaintiffs allege Deputy Latic had sufficient time to
advise Trooper Annarino to stop struggling with decedent as he recovered
from his seizure. Id. ¶ 53. Plaintiffs allege Deputy Latic did not attempt to
intervene or intercede. Id. ¶¶ 50–54. Instead, plaintiffs allege that Deputy

Latic wrapped his arms around decedent’s legs while Trooper Annarino
administered two separate volleys of gunfire. Id. ¶¶ 54–56.
Upon review, these facts are sufficient to plausibly allege that Deputy
Latic is liable for a failure to intervene. In an effort to avoid this result, the

County defendants argue that plaintiffs have failed to plausibly allege that
Deputy Latic had “a realistic opportunity to intervene to prevent the harm
from occurring.” County Defs.’ Mem. at 13–15. According to the County
defendants, the fast-paced nature of the incident deprived Deputy Latic of a

realistic opportunity to intervene. See id.
This argument must be rejected because it is too fact-specific an inquiry to
resolve at this early stage of the case. “In order for liability to attach, there
must have been a realistic opportunity to intervene to prevent the harm from

occurring.” Anderson, 17 F.3d at 557 (citation omitted). But as the Second
Circuit has cautioned, there is no “bright-line rule” in a failure-to-intervene
case. Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). To the contrary,
these claims arise “out of a limitless variety of factual circumstances.” Id.

“In each case, the question whether a defendant had a realistic chance to
intercede with turn on such factors as the number of officers present, their
relative placement, the environment in which they acted, the nature of the
assault, and a dozen other considerations.” Id.

At this early stage of the litigation, it is unclear precisely how much time
passed between Deputy Latic’s arrival on the scene and the conclusion of the
entire incident. To be sure, discovery might reveal that Trooper Annarino’s
escalation to the use of deadly force occurred so swiftly that Deputy Latic had

no “realistic opportunity” to intervene on decedent’s behalf. Again, though,
this is not summary judgment. Accordingly, the County defendants’ motion
to dismiss plaintiffs’ § 1983 failure-to-intervene claim against Deputy Latic
will be denied.

ii. The County (Count Six)
Plaintiffs allege a § 1983 municipal liability claim against the County
(Count Six). According to the complaint, Deputy Latic’s alleged misconduct
“was directly and proximately caused by de facto policies, practices, and/or

customs devised, implemented, enforced, encouraged, and sanctioned by” the
County. Compl. ¶ 100. In addition, the complaint alleges that the County
“failed to properly train, supervise, and discipline law enforcement officers in
the lawful treatment of disabled individuals” and that, as a result, Deputy

Latic violated decedent’s constitutional rights. Id. ¶¶ 103–104.
“[T]o establish municipal liability under 42 U.S.C. § 1983, a plaintiff must
demonstrate that the deprivation of his constitutional right was ‘caused by a

governmental custom, policy or usage of the municipality.’” Crawley v. City of
Syracuse, 496 F. Supp. 3d 718, 729 (N.D.N.Y. 2020) (quoting Deferio v. City of
Syracuse, 770 F. App’x 587, 589 (2d Cir. 2019) (summary order)). “The policy
or custom need not be memorialized in a specific rule or regulation,” Kern v.

City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996), and it may be “reflected in
either action or inaction,” Cash v. Cnty. of Erie, 654 F.3d 324, 341–42 (2d Cir.
2011). Accordingly, municipal liability under § 1983 may be established
through:

(1) a policy formally adopted and endorsed by the
municipality; (2) actions taken by policymaking
officials that caused the particular deprivation
alleged; (3) practices by subordinate officials that are
not expressly authorized but are so widespread and
consistent that policymakers must have been aware of
them; or (4) a failure by policymakers to train or
supervise that amounts to “deliberate indifference” to
the rights of those who come into contact with the
inadequately trained or supervised municipal
employees.

Crawley, 496 F. Supp. 3d at 729 (cleaned up).
As noted supra, plaintiffs allege that Deputy Latic’s alleged misconduct
was “directly and proximately caused by de facto policies, practices, and/or
customs devised, implemented, enforced, encouraged, and sanctioned” by the
County, “whereby written policies are ignored in practice in favor of de facto
policies or, alternatively, by failing to maintain appropriate policies in the
first place.” Compl. ¶ 100. In addition, plaintiffs allege that the County

“failed to properly train, supervise, and discipline law enforcement officers in
the lawful treatment of disabled individuals” and that, as a result, Deputy
Latic violated decedent’s constitutional rights. Id. ¶¶ 103–104.
In other words, plaintiffs have attempted to plead the third and/or fourth

theories of municipal liability: (1) a widespread municipal practice arising to
a de facto custom of which policymakers must be aware; and/or (2) a failure
by policymakers to adequately train or supervise its officers.
a. Widespread Practice

The third theory of Monell liability, a widespread practice arising to a de
facto custom, “is satisfied where a local government is faced with a pattern of
misconduct and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its subordinates’ unlawful

actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (collecting
cases). “Such a pattern, if sufficiently persistent or widespread as to acquire
the force of law, may constitute a policy or custom within the meaning of
Monell.” Id. (collecting cases). However, isolated acts by non-policymaking

municipal employees are generally insufficient to demonstrate a municipal
custom, policy, or usage that would justify the imposition of municipal
liability. Hicks v. City of Syracuse, 2018 WL 6308653, at *4 (N.D.N.Y. Dec. 3,
2018) (citing Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012)).

Upon review, plaintiffs have alleged only a single, isolated incident by a
non-policymaking official. Plaintiffs have failed to allege any other instances
that might plausibly support the existence of a broader, widespread pattern
or practice of deliberate indifference to the constitutional rights of citizens,

particularly those with disabilities. See Strong v. City of Syracuse, 2020 WL
137250, at *3 (N.D.N.Y. Jan. 13, 2020).
Because plaintiffs’ allegations of a de facto policy regarding disabled
individuals are phrased in wholly conclusory terms, they are “insufficient to

sustain or ‘raise a reasonable expectation that discovery will reveal evidence’
in support of [plaintiffs’] claim,” Schnauder v. Gibens, 679 F. App’x 8, 10 (2d
Cir. 2017) (summary order) (citation omitted). Accordingly, plaintiffs have
failed to plausibly allege a municipal liability claim on this basis.

b. Failure to Train or Supervise
To make out a failure to train or supervise theory, “a municipality’s failure
to train its employees in a relevant respect must amount to ‘deliberate
indifference to the rights of persons with whom the [untrained employees]

come into contact.’” Werkheiser v. County of Broome, 2023 WL 1927696, at
*13 (N.D.N.Y. Feb. 9, 2023) (quoting Connick v. Thompson, 563 U.S. 51, 61
(2011)). “A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.” Id. (citation omitted).

As noted supra, plaintiffs have failed to allege any pattern of similar
constitutional violations by the County. Because conclusory allegations are
insufficient to plausibly allege a municipal liability claim, Werkheiser, 2023
WL 1927696, at *13, plaintiffs have failed to plausibly allege a municipal

liability claim on this basis. Accordingly, plaintiffs’ § 1983 municipal liability
claim against the County (Count Six) will be dismissed.
B. Disability Claims
Plaintiffs’ complaint alleges claims under Title II of the ADA and Section

504 of the Rehabilitation Act against the State Police and the County (Count
Four) and against Trooper Annarino in his official capacity (Count Five).
Under Title II of the ADA, “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132.5 As the
Second Circuit has explained, “[a] plaintiff may base [a] Title II claim on any
of three theories of liability: disparate treatment (intentional discrimination),

5 “As the standards for actions under Title II of the ADA and the Rehabilitation Act are
generally equivalent, a court analyzes such claims together for purposes of determining whether a
plaintiff has stated a prima facie claim.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis.,
804 F.3d 178, 187 (2d Cir. 2015) (cleaned up).
disparate impact, or failure to make a reasonable accommodation.” Tardif v.
City of N.Y., 991 F.3d 394, 404 (2d Cir. 2021).

However, “in order to recover damages under Title II of the ADA and the
Rehabilitation Act, the plaintiff must show that the discrimination was
intentional.” Butchino v. City of Plattsburg, 2022 WL 137721, at *9
(N.D.N.Y. Jan. 14, 2022) (D’Agostino, J.) (citing Vassenelli v. State Univ. of

N.Y., 2018 WL 1406629, at *3 (N.D.N.Y. Mar. 19, 2018)).
“To prove intentional discrimination under Title II, a plaintiff must allege
facts showing that a policymaker acted with ill will or personal animosity
toward him because of his disability or that the policy maker acted with

deliberate indifference to his rights under the ADA.” Vassenelli, 2018 WL
1406629, at *3 (cleaned up). “The standard for intentional violations is
deliberate indifference to the strong likelihood of a violation.” Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (cleaned up).

1. State Defendants
The State defendants have moved to dismiss the claims under Title II of
the ADA and Section 504 of the Rehabilitation Act asserted against them
(Counts Four and Five) as barred by the Eleventh Amendment. State Defs.’

Mem. at 3, 6–9. In the alternative, the State defendants argue these claims
should be dismissed on the merits. Id. at 9–11.
i. Trooper Annarino
As an initial matter, plaintiffs’ ADA and Rehabilitation Act claims against

Trooper Annarino in his official capacity (Count Five) must be dismissed
because they are redundant of plaintiffs’ ADA and Rehabilitation Act claims
against the State Police (Count Four).
“[T]here is a split of authority as to whether the ADA and Rehabilitation

Act provide for liability against individual defendants in their official
capacities.” Killoran ex rel. Killoran v. Westhampton Beach Sch. Dist., 2022
WL 866816, at *8 (E.D.N.Y. Mar. 22, 2022) (citation omitted). On one hand,
“[n]umerous district court judges in this Circuit have held that official

capacity suits for monetary damages are not cognizable under the ADA or
Rehabilitation Act.” Scalercio-Isenberg v. Port Auth. of N.Y., 2018 WL
1633767, at *5 (S.D.N.Y. Mar. 31, 2018) (collecting cases). On the other
hand, “courts have held that official capacity lawsuits are permissible under

the ADA and Rehabilitation Act.” Id. “Courts in the latter group rest their
conclusion on the premise that an official-capacity suit naming an individual
is effectively a suit against the government entity.” Id. at *6.
Nevertheless, the question of whether official capacity suits for monetary

relief are available under the ADA or Rehabilitation Act need not be resolved
because the answer to the question under either theory will lead to dismissal
of plaintiffs’ claims against Trooper Annarino. See Scalercio-Isenberg, 2018
WL 1633767, at *5. Indeed, even if the claims were cognizable, they would be
redundant because Trooper Annarino in his “official capacity” was acting as a

representative of the State Police. See id.; Constantine v. Merola, 2021 WL
2417514, at *2 n.2 (N.D.N.Y. June 14, 2021). In short, “there is no reason to
permit duplicate claims to proceed against both parties.” Scalercio-Isenberg,
2018 WL 1633767, at *5 (citing Hallett v. N.Y. State Dep’t of Corr. Servs., 109

F. Supp. 2d 190, 200 (S.D.N.Y. 2000)). Accordingly, plaintiffs’ ADA and
Rehabilitation Act claims against Trooper Annarino (Count Five) will be
dismissed as redundant of plaintiffs’ claims against the State Police.
ii. The State Police

The State defendants have moved to dismiss the claims under Title II of
the ADA and Section 504 of the Rehabilitation Act asserted against the State
Police (Count Four) as barred by the Eleventh Amendment. State Defs.’
Mem. at 3, 6–9. In the alternative, the State defendants argue these claims

should be dismissed on the merits. Id. at 9–11.
Ordinarily, the Eleventh Amendment question would need to be resolved
first because it is jurisdictional in nature. However, “if Plaintiff fails to allege
an actionable ADA violation at the outset, [ ] questions of sovereign immunity

are irrelevant.” Colon v. N.Y. State Dep’t of Corrs. & Cmty. Supervision, 2017
WL 4157372, at *6 (S.D.N.Y. Sept. 15, 2017). To assert a claim under either
Title II of the ADA or Section 504 of the Rehabilitation Act, plaintiffs must
plausibly allege that: (1) decedent was a qualified individual with a disability;
(2) defendants are subject to one of the Acts; and (3) decedent was denied the

opportunity to participate in or benefit from the defendant’s services,
programs, or activities, or was otherwise discriminated against by the
defendant because of his disability.
a. Merits

The State defendants concede that decedent was a “qualified individual
with a disability.” State Defs.’ Mem. at 9–11. They also concede that the
State Police is an entity subject to the Acts. See id. Instead, the State
defendants argue that plaintiffs have not plausibly alleged the third

requirement; i.e., that decedent was denied the opportunity to participate in
or benefit from defendants’ services, programs, or activities, or was otherwise
discriminated against, by defendants because of his disability. Id.
As noted supra, plaintiffs allege that defendants failed to reasonably

accommodate decedent’s disability by failing to provide “adequate training,
resources, supervision, or discipline to law enforcement regarding the
appropriate way of responding to individuals who exhibit the signs and
symptoms of seizure disorders, including by failing to instruct officers not to

restrain someone having a seizure and to keep them on the side of their
body.” Compl. ¶ 85.
The State defendants contend that “these allegations allege that Plaintiff
was not properly treated for his seizure disorder, not that he was denied a

service, program or activity because of his seizure disorder.” State Defs.’
Mem. at 10. According to the State defendants, “[t]his flaw is fatal to
[p]laintiffs’ claims” because “[c]ourts have concluded that Title II of the ADA
and Rehabilitation Act prohibit ‘discrimination against a handicapped

individual only where the individual’s handicap is unrelated to, and thus
improper to consideration of, the services in question.’” Id. (citation omitted).
In opposition, plaintiffs assert that their “claim is not that [d]ecedent
received inadequate medical treatment as a result of his disability, but

instead that he was denied the provision of lawful police services as a result
of the [d]efendants’ failure to accommodate his disability.” Pls.’ Opp’n to
State Defs.’ Mem. at 22 (emphasis in original). According to plaintiffs,
“[c]ourts have routinely recognized claims like this one under the ADA and

Rehabilitation Act where, just as here, the police failed to reasonably
accommodate an individual’s disability while providing law enforcement
services.” Id.
Upon review, plaintiffs have plausibly alleged claims under Title II of the

ADA and Section 504 of the Rehabilitation Act against the State Police. As
plaintiffs point out, “the failure to provide a reasonable accommodation to a
service or benefit . . . is a quintessential failure to accommodate disability
claim.” Butchino, 2022 WL 137721, at *12. As plaintiffs also note, numerous
courts have recognized this principle in the context of law enforcement

officials interacting with disabled individuals. See, e.g., Durr v. Slator, 558 F.
Supp. 3d 1, 30–33 (N.D.N.Y. 2021) (D’Agostino, J.) (denying motion to dismiss
where plaintiff with a history of mental illness alleged that defendant-officers
should have used de-escalation techniques instead of placing him in

handcuffs); Butchino, 2022 WL 137721, at *10–12 (denying summary
judgment where plaintiff, an individual diagnosed with post-traumatic stress
disorder, alleged that defendant-officers should have “allowed him to cool off
before forcibly removing his shorts”). Accordingly, plaintiffs’ claims under

Title II of the ADA and Section 504 of the Rehabilitation Act against the
State Police (Count Four) remain for discovery.
b. Eleventh Amendment
The remaining question is whether these ADA and Rehabilitation Act

claims against the State Police, which seek money damages rather than
injunctive relief, are barred by the Eleventh Amendment.
Generally speaking, “[t]he Eleventh Amendment bars a damages action in
federal court against a state and its officials when acting in their official

capacity unless the state has waived its sovereign immunity or Congress has
abrogated it.” Dean, 804 F.3d at 193. “State immunity extends not only to
the states, but also to state agencies.” Matagrano, 2020 WL 7338586, at *15
(citations omitted).

First off, the Eleventh Amendment does not bar a damages action brought
under the Rehabilitation Act. “[I]n enacting § 504 of the Rehabilitation Act,
Congress expressed its clear intent to condition a state’s acceptance of federal
funds on the state’s waiver of its Eleventh Amendment immunity.” De

Figueroa v. New York, 403 F. Supp. 3d 133, 150 (E.D.N.Y. 2019) (cleaned up).
“Courts in this Circuit have held that New York State’s continued receipt
of federal funds under § 504 . . . constitutes a knowing waiver of sovereign
immunity.” De Figueroa, 403 F. Supp. 3d at 150 (cleaned up). Accordingly,

New York’s acceptance of federal funds on behalf of the State Police is
sufficient to plausibly allege the knowing waiver of sovereign immunity. See
Compl. ¶ 81 (alleging that the State Police receive federal funds).
However, “[i]t is a more complicated question whether the Eleventh

Amendment precludes recovery of money damages against New York state
and its officials under Title II of the ADA which, in contrast to the
Rehabilitation Act, was not enacted pursuant to Congress’s power under the
Spending Clause of Article I.” Thompson v. N.Y. State Corr. & Cmty.

Supervision, 2022 WL 4562318, at *12 (W.D.N.Y. Sept. 29, 2022)
“In Garcia v. State Univ. of N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98
(2d Cir. 2001), the Second Circuit addressed the question of whether
Congress had validly abrogated state sovereign immunity from claims for
monetary damages under Title II of the ADA.” Matagrano, 2020 WL

7338586, at *15. “The Court held that ‘it is clear that the Congress fully
intended to abrogate state sovereign immunity’ from such claims, but that
this purported abrogation was not valid, as the enactment of Title II exceeded
Congress’s authority under § 5 of the Fourteenth Amendment[.]” Id. (quoting

Garcia, 280 F.3d at 108–10). However, “the Court found that Title II could be
rehabilitated by requiring ‘plaintiffs bringing such suits to establish that the
Title II violation was motivated by discriminatory animus or ill will based on
the plaintiff’s disability.’” Id. (quoting Garcia, 280 F.3d at 111).

Even so, “it is unclear whether Garcia’s requirement that a plaintiff
establish animus or ill will in order to abrogate sovereign immunity survives
in the wake of the Supreme Court’s rulings in Tennessee v. Lane, 541 U.S.
509 (2004), and United States v. Georgia, 546 U.S. 151 (2006).” Russell v.

New York, 2019 WL 4805687, at *4 (S.D.N.Y. Sept. 30, 2019) (citations
omitted).
“In Lane, the Supreme Court held that Title II validly abrogates a state’s
sovereign immunity as applied to cases implicating a plaintiff’s fundamental

right of access to the courts,” “while in Georgia, the Supreme Court concluded
that ‘insofar as Title II creates a private cause of action for damages against
the States for conduct that actually violates the Fourteenth Amendment,
Title II validly abrogates state sovereign immunity.’” Id. (citations omitted).

In light of the continued uncertainty, “District Courts have taken varying
approaches to the continuing validity of Garcia.” Matagrano, 2020 WL
7338586, at *16. “When determining whether Congress has validly
abrogated states’ sovereign immunity over Title II claims that do not

independently implicate a constitutional violation, some courts have
continued to apply Garcia’s ‘discriminatory animus or ill will’ requirement.”
Id. (collecting cases). “Others have applied the three-part test articulated in
City of Boerne v. Flores, 521 U.S. 507, 520 (1997) to determine whether, for

the particular Title II violation alleged, there is a ‘congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.’” Matagrano, 2020 WL 7338586, at *16
(collecting cases).

The State defendants argue that the Garcia test should be applied. But
they do not address the conflicting case law on whether Garcia remains good
law after Lane and Georgia. State Defs.’ Mem. at 6–9; see also Matagrano,
2020 WL 7338586, at *17. The State defendants have also failed to explain

why plaintiffs’ allegations would not survive a sovereign immunity challenge
under the frameworks that Garcia endorses. State Defs.’ Mem. at 6–9; see
also Matagrano, 2020 WL 7338586, at *17. Nor do the State defendants put
forth any arguments about whether plaintiffs’ disability claims could survive
an Eleventh Amendment defense under any approach other than Garcia,

such as the City of Boerne test applied by some lower courts. See State Defs.’
Mem. at 6–9; see also Matagrano, 2020 WL 7338586, at *17.
“In the absence of more complete briefing from the parties on these
questions, the Court need not wade into these turbulent constitutional

waters.” Matagrano, 2020 WL 7338586, at *18. Importantly, “in the Second
Circuit, the state entity asserting an Eleventh Amendment defense bears the
burden of demonstrating that it is entitled to dismissal of the lawsuit on the
ground of Eleventh Amendment immunity.” Id. at *18 (cleaned up). Thus,

because State defendants bear the burden of demonstrating that plaintiffs’
claim must be dismissed on Eleventh Amendment grounds, and “for the
reasons identified above, they have not done so,” their Eleventh Amendment
argument fails at this early stage of the proceedings.6 Id.

2. County Defendants
The County defendants have moved to dismiss the claims under Title II of
the ADA and Section 504 of the Rehabilitation Act that are asserted against
the County (Count Four). County Defs.’ Mem. at 16–20. To assert a claim

under either Title II of the ADA or Section 504 of the Rehabilitation Act,

6 The need to resolve the Eleventh Amendment issue at the pleading stage is lessened even
further given that plaintiffs’ Rehabilitation Act claims against State Police survives. Matagrano,
2020 WL 7338586, at *18 (citations omitted).
plaintiffs must allege: (1) decedent was a qualified individual with a
disability; (2) defendants are subject to one of the Acts; and (3) decedent was

denied the opportunity to participate in or benefit from the defendant’s
services, programs, or activities, or was otherwise discriminated against by
the defendant because of his disability.
The County defendants concede that the County is “subject to one of the

Acts.” County Defs.’ Mem. at 15–18. However, they argue that plaintiffs’
claims under Title II of the ADA and Section 504 of the Rehabilitation Act
should be dismissed because (i) the complaint fails to plausibly allege that
decedent was “a qualified individual with a disability”; and (ii) the complaint

fails to plausibly allege that the alleged discrimination was “intentional.” Id.
i. Qualified Individual with a Disability
Generally speaking, the Americans with Disabilities Act defines a
“disability” as a “physical or mental impairment that substantially limits one

or more major life activities.” 42 U.S.C. § 12102(1)(A). However, “[n]ot every
impairment is a ‘disability’ within the meaning of the ADA.” Capobianco v.
City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005). Instead, there are two major
qualifications: (1) the claimed impairment must limit a “major life activity”

and (2) the limitation must be “substantial.” Id.
As to the first qualification, major life activities include physical functions
like walking, standing, and lifting as well as other common activities such as
reading, concentrating, and working. 42 U.S.C. § 12102(2)(A). As to the
second qualification, a plaintiff’s impairment must “substantially limit[ ] the

ability of an individual to perform a major life activity as compared to most
people in the general population.” 29 C.F.R. § 1630.2(j)(ii).
In 2008, Congress amended the text of the ADA “to make clear that the
substantial-limitation requirement in the definition of ‘disability’ is not an

exacting one.” Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 2020). Even so, it
remains the case that “[n]ot every impairment that affects an individual’s
major life activities is a substantially limiting impairment.” B.C. v. Mt.
Vernon Sch. Dist., 837 F.3d 152, 160 (2d Cir. 2016) (cleaned up). Thus, “in

assessing whether a plaintiff has a disability, [courts] have been careful to
distinguish impairments which merely affect major life activities from those
that substantially limit those activities.” Id. (emphases in original).
To demonstrate that decedent suffered from a “physical or mental

impairment,” plaintiffs must show the alleged impairment fits within the
Equal Employment Opportunity Commission (“EEOC”) regulations defining
physical and mental impairments. Hernandez v. Int’l Shoppes, LLC, 100 F.
Supp. 3d 232, 257 (E.D.N.Y. 2015) (citation omitted). Impairments are

defined by the EEOC as:
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune,
circulatory, hemic, lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as an
intellectual disability (formerly termed “mental
retardation”), organic brain syndrome, emotional or
mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h).
Plaintiffs allege that decedent suffered from seizures “for many years,”
and that these seizures “caused him to lose consciousness and his muscles to
stiffen and jerk.” Compl. ¶ 19. Although these allegations are somewhat
thin, they are sufficient to plausibly allege that decedent’s seizure disorder
amounted to a “physical or mental impairment.” See, e.g., Smith v. Strayer
Univ. Corp., 79 F. Supp. 3d 591, 600 (E.D. Va. 2015) (holding that “seizures”
qualify as a “physical or mental impairment”).
To demonstrate that this seizure disorder qualified as a “disability,” the
complaint must also plausibly allege that it substantially affected a major life
activity. Durr, 558 F. Supp. 3d at 28 (citation omitted). “[M]ajor life
activities include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A).
First, plaintiffs allege decedent’s seizure disorder substantially limited the
major life activity of “driving.” Compl. ¶¶ 19, 82. For example, plaintiffs

allege that “[d]octors told [decedent] it was unsafe to drive a car,” id. ¶ 19,
and further allege this inability to drive “especially in a place like upstate
New York, where public transportation is not available” prevented him from
being able to care for himself. Pls.’ Opp’n to County Defs.’ Dkt. No. 36 at 16.

Upon review, this argument must be rejected. Courts in this Circuit have
repeatedly held that “driving” is not a major life activity. Laface v. E. Suffolk
Boces, 349 F. Supp. 3d 126, 147 (E.D.N.Y. 2018) (collecting cases). These
courts have also held that “being unable to use public transportation as an

alternative to driving does not rise to the level of a major life activity.” Id. at
147 (E.D.N.Y. 2018); see also Dechberry v. N.Y.C. Fire Dep’t, 124 F. Supp. 3d
131, 152 (E.D.N.Y. 2015).
Second, plaintiffs allege that decedent’s seizure disorder substantially

limited his ability to “hold a job” and “certain employers would not allow him
to work in case he had a seizure on the job.” Compl. ¶¶ 19, 82. Notably, the
ability to “work” is a major life activity. 42 U.S.C. § 12102(2)(A). However,
for a disability to substantially limit the major life activity of working, the

complaint must plausibly allege that the disability affected “the ability to
perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and
abilities.” Anderson v. Nat’l Grid, PLC, 93 F. Supp. 3d 120, 137–38 (E.D.N.Y.
2015) (citation omitted).

Upon review, plaintiffs have plausibly alleged that decedent’s seizure
disorder substantially limited his ability to perform “a class of jobs or a broad
range of jobs.” Although plaintiffs have failed to provide specifics as to
precisely how decedent’s seizure disorder impacted his ability to obtain and

keep employment, a broad reading of plaintiffs’ allegations support the
reasonable inference that decedent’s seizures substantially limited his ability
to work. Accordingly, plaintiffs have sufficiently alleged that decedent was a
qualified individual with a disability within the meaning of the Acts.

ii. Intentional Discrimination
The County defendants also argue that plaintiffs have failed to plausibly
allege that the County’s discrimination was intentional. County Defs.’ Mem.
at 17. According to them, plaintiffs’ factual allegations are insufficient to

demonstrate that Deputy Latic had any prior knowledge of decedent’s seizure
disorder and therefore any discrimination was unintentional. Id. at 17–18.
Upon review, this argument will be rejected. “[K]nowledge of a disability
is a prerequisite to discriminating by reason of that disability.” Butchino,

2022 WL 137721, at *10 (citing Brady v. Wal-Mart Stores, Inc., 531 F.3d 127,
135 (2d Cir. 2008)). However, plaintiffs allege that “prior to the arrival of any
of the individual defendants, Ms. Howard got back online with the 911
dispatcher and informed the dispatcher that [decedent] was experiencing a
seizure” and “[a] review of the dispatch log indicates that the dispatcher

updated the police department with this information.” Compl. ¶¶ 28–29.
In addition, plaintiffs allege more generally that the County failed to
accommodate decedent’s seizure disorder by not providing “adequate
training, resources, supervision, or discipline to law enforcement regarding

the appropriate way of responding to individuals who exhibit the signs and
symptoms of seizure disorders, including by failing to instruct officers not to
restrain someone having a seizure and to keep them on the side of their
body.” Compl. ¶ 85

Taken together, these allegations, which are assumed true for the purpose
of a motion to dismiss, are sufficient to plausibly allege that the County’s
alleged conduct was intentional and that Deputy Latic was on notice of
decedent’s seizure disorder. In fact, “courts in this circuit have found that

plaintiffs provided sufficient evidence of deliberate indifference when they
could point to training deficiencies of which municipal entities were aware
and which existed with respect to populations police would necessarily
encounter as they did their duties.” Felix v. City of N.Y., 344 F. Supp. 3d 644,

666 (S.D.N.Y. 2018) (citing Williams v. City of N.Y., 121 F. Supp. 3d 354,
374–75 (S.D.N.Y. 2015)). Accordingly, plaintiffs’ claims under Title II of the
ADA and Section 504 of the Rehabilitation Act against the County (Count
Four) remain for discovery.

C. State Law Claims7
Finally, the complaint alleges state law claims against Trooper Annarino
and Deputy Latic for negligence (Count Eight), conscious pain and suffering
(Count Nine), the negligent infliction of emotional distress (Count Ten), and

wrongful death (Count Thirteen).
1. Negligence (Count Eight)
“Although a plaintiff is typically permitted to plead different causes of
action in the alternative, other District Courts in this Circuit have held that

when a plaintiff’s factual allegations are only consistent with a theory of
intentional conduct, negligence claims must be dismissed.” McDonald v. City
of Troy, 542 F. Supp. 3d 161, 173 (N.D.N.Y. 2021) (quoting Rizk v. City of
N.Y., 462 F. Supp. 3d 203, 229 (E.D.N.Y. 2020). “Following that general rule,

excessive force claims premised on allegedly intentional conduct are typically
not permitted to coexist with claims of common negligence.” Id. (citing Warr
v. Liberatore, 270 F. Supp. 3d 637, 655 (W.D.N.Y. 2017).

7 The complaint alleges state law claims against AmCare for negligent hiring, training, and/or
discipline (Count Seven), vicarious liability (Count Eleven), and wrongful death (Count Thirteen).
The complaint also alleges claims against Paramedic Taylor for negligence (Count Eight), pain and
suffering (Count Nine), the infliction of emotional distress (Count Ten), and wrongful death (Count
Thirteen). AmCare and Paramedic Taylor have answered the complaint, so those claims will go to
discovery.
But this rule only applies if “[n]o theory of negligence could plausibly
apply to [the] alleged conduct.” Negron v. City of N.Y., 976 F. Supp. 2d 360,

373 (E.D.N.Y. 2013). That is not the case here. Plaintiffs have alleged, inter
alia, that “[d]efendants Annarino and Latic, in seizing, restraining, and
pushing [decedent] onto his back while [decedent] was experiencing a seizure,
failed to perform their duties with the degree of care that a reasonably

prudent and careful law enforcement officer would have used under similar
circumstances.” Compl. ¶ 113.
As the County defendants correctly note, these allegations overlap with
“those underpinning the excessive force claims.” County Defs.’ Mem. at 20.

But it is equally plausible that those facts, if true, could ultimately lead to a
negligent-but-not-intentional theory of recovery. Cf. Negron, 976 F. Supp. 2d
at 373 (opining similarly on summary judgment). Because it is not clear from
the facts alleged in the complaint that the negligence claims cannot coexist

with the claims alleging intentional conduct, plaintiffs’ negligence claims
against Trooper Annarino and Deputy Latic remain for discovery.8

8 The State defendants have not specifically argued for the dismissal of this claim. Pls.’ Opp’n to
State at 7 n.2.
2. Pain and Suffering (Count Nine)
Under New York law, “conscious pain and suffering” is recognized as a

separate cause of action.9 “It refers to the decedent’s injuries, pain and
suffering prior to death, and can be brought by the estate.” Ocasio, 513 F.
Supp. 3d at 328 (citation omitted). “To state a claim for conscious pain and
suffering, plaintiffs must allege that the injured party was conscious for some

period of time following the [injury].” Id. (cleaned up).
Upon review, plaintiffs have plausibly alleged this claim. In particular,
the complaint alleges that decedent ‘was conscious for approximately
thirty-five minutes after being shot.” Compl. ¶ 117. And as determined

supra, plaintiffs have sufficiently alleged other claims related to decedent’s
shooting death. Accordingly, plaintiffs’ claims for conscious pain and
suffering against Trooper Annarino and Deputy Latic remain for discovery.
3. Infliction of Emotional Distress (Count Ten)

Plaintiffs have agreed to dismiss their claim for negligent infliction of
emotional distress (“NIED”) against Deputy Latic. Pls.’ Opp’n to County at 6
n.1. However, plaintiff oppose dismissal of their NIED claim against Trooper
Annarino. Pls.’ Opp’n to State at 25.

9 “A plaintiff asserting a survival claim for conscious pain and suffering must show an
underlying cause of action that the decedent would have been able to pursue had he survived the
alleged wrongdoing.” Chamberlain v. City of White Plains, 986 F. supp. 2d 363, 398 (S.D.N.Y. 2013)
(quoting N.Y. EST. POWERS & TRUSTS LAW § 11-3.2(b)).
“To plead a negligent infliction of emotional distress claim under New
York law, a plaintiff must allege (1) a breach of a duty owed to the plaintiff;

(2) emotional harm; (3) a direct causal connection between the breach and the
emotional harm; and (4) circumstances providing some guarantee of
genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81
(2d Cir. 2021). “To establish the fourth element, the plaintiff generally must

plead that the breach endangered his physical safety or caused him to fear for
his physical safety.” Id. at 81 n.57.
Importantly, an emotional-distress claim can be established under two
distinct theories of liability: (1) the direct duty theory or (2) the bystander

theory. Alaei v. State Univ. of N.Y. at Albany, 2022 WL 4094450, at *9
(N.D.N.Y. Sept. 7, 2022) (citation omitted). The direct duty theory of liability
exists “when a plaintiff suffers an emotional injury from defendant’s breach
of a duty which unreasonably endangered her own physical safety.” Chinese

Ams. C.R. Coal., Inc. v. Trump, 2022 WL 1443387, at *5 (S.D.N.Y. May 6,
2022) (cleaned up). The bystander theory of liability exists “when a person is
threatened with physical harm as a result of defendant’s negligence, and
consequently suffers emotional injury from witnessing the death or serious

bodily injury of a member of her immediate family.” Id. (cleaned up).
In this case, plaintiffs are seeking recovery under the so-called “bystander
theory” of liability. In support of this claim, plaintiffs have alleged that
Trooper Annarino is liable to Johnson, decedent’s father, because Trooper
Annarino (1) owed Johnson a duty to act as a reasonably prudent law

enforcement officer under the circumstances; (2) the negligent act of Trooper
Annarino “directly and proximately caused [decedent’s] death”; (3) Johnson
“was in the zone of danger at the time that [decedent] was shot and witnessed
his tragic death,” and “as a result of witnessing his son’s death and standing

in the direct proximity of the shooting”; and (4) Johnson “suffered emotional
distress” as a result of the events. Compl. ¶¶ 122–26.
Upon review, these allegations are sufficient for the purpose of a motion to
dismiss. In fact, courts have specifically recognized the bystander theory in

instances where a family member was intentionally shot by a police officer
while the plaintiff was in the zone of danger. See Albert v. City of N.Y., 2019
WL 3804654, at *9 (E.D.N.Y. Aug. 13, 2019); Sylvester v. City of N.Y., 385 F.
Supp. 2d 431, 445 (S.D.N.Y. 2005). Accordingly, plaintiffs’ emotional-distress

claim against Trooper Annarino remains for discovery.10
4. Wrongful Death (Count Thirteen)
Finally, plaintiffs allege that Trooper Annarino and Deputy Latic, along
with others, “individually and collectively” wrongfully caused the death of

decedent. Compl. ¶¶ 138–41. Thus, according to the complaint, decedent’s

10 The State defendants argued that Johnson cannot establish that Trooper Annarino owed him
a duty of care or that he suffered any emotional harm. See State Defs.’ Mem. at 15. However, the
State defendants have failed to provide any legal basis to support those arguments. See id.
minor daughter H.M.J., “the statutory distribute of [decedent’s] estate,
sustained pecuniary and non-economic loss resulting from the loss of love,

comfort, society, attention, services, and support of her father.” Id. ¶ 140.
The State defendants and the County defendants seek to dismiss this
claim. State Defs.’ Mem. at 3; County Defs.’ Mem. at 20–21. While the State
defendants do not provide any arguments in support of dismissal, see State

Defs.’ Mem., the County defendants maintain that this claim is barred by the
two-year statute of limitations. County Defs.’ Mem. at 20–21.
“The lapse of a limitations period is an affirmative defense that a
defendant must plead and prove.” Staehr v. Hartford Fin. Servs. Grp., 547

F.3d 406, 425 (2d Cir. 2008). Therefore, dismissal of a claim based on an
affirmative defense at the pleading stage is warranted only if “it is clear from
the face of the complaint, and matters of which the court may take judicial
notice, that the [claim] [is] barred as a matter of law.” Id. (citation omitted).

Under New York law, a two-year limitations period on a wrongful death
claim begins running from the date of death. N.Y. EST. POWERS & TRUSTS
LAW § 5-4.1(1). As relevant here, the complaint alleges that decedent died on
April 16, 2019. Because the complaint was not filed until April 11, 2022, this

claim would appear to be untimely. However, plaintiffs argue this claim is
timely because the limitations period was tolled twice: first, by statute during
H.M.J.’s infancy; and second, by certain Executive Orders issued during the
COVID-19 pandemic. Pls.’ Opp’n to State Defs.’ Mem. at 20.

First, “[w]here a minor child seeks to bring a wrongful death claim arising
from a parent’s death, the child’s minor status may toll the statute of
limitations, but the tolling period ends when the minor child reaches the age
of majority or has a guardian appointed.” Rivera v. West, 2015 WL 8481554,

at *3 (S.D.N.Y. Nov. 24, 2015) (citations omitted); see also Hernandez v.
N.Y.C. Health & Hosps. Corp., 585 N.E.2d 822, 825 (N.Y. 1991).
As relevant here, H.M.J., the distributee of decedent’s estate, was a minor
at the time of decedent’s death. Compl. ¶ 11. Russell was not appointed as

the guardian of H.M.J.’s property until November 27, 2019. Id. As such, the
statute of limitations for plaintiffs’ wrongful death claim did not begin to run
until November 27, 2019.
This tolling of the limitations period, standing alone, would not be enough

to save plaintiffs’ wrongful death claim, which would have expired two years
later on November 27, 2021. However, plaintiffs’ point to a second tolling of
the limitations period. According to plaintiffs, the relevant limitations period
was tolled for most of the COVID-19 pandemic.

On March 20, 2020, former New York State Governor Andrew Cuomo
signed Executive Order 202.8, which declared that “any specific time limit for
the commencement, filing, or service of any legal action, notice, motion, or
other process or proceeding as prescribed by the procedural laws of the state .
. . is hereby tolled from the date of this executive order until April 19,

2020.” Bell v. Saunders, 2022 WL 2064872, at *4 (N.D.N.Y. June 8,
2022). Thereafter, “[t]he Governor issued nine subsequent Executive Orders,
collectively extending the first order until November 3, 2020.” Id.
“District courts in this Circuit have agreed and found that Executive

Order 202.8 and subsequent orders tolled the statute of limitations period
from March 20, 2020 through November 3, 2020, a total of 228 days.” Id. at
*5 (collecting cases). These Executive Orders effectively tolled the normal
limitations period. Cain v. Cnty. of Niagara, N.Y., 2022 WL 616795, at *7

(W.D.N.Y. Mar. 2, 2022).
In other words, the two-year limitations period on this wrongful death
claim began running on November 27, 2019, but was paused on March 20,
2020, with only 114 days elapsed. That pause continued until November 3,

2020, when the Executive Orders expired. Thereafter, the clock continued to
run for 524 more days until April 11, 2022, the date on which this suit was
filed. At that point, only 638 days had elapsed, shy of the 730 days available
in the two-year limitations period. Accordingly, plaintiffs’ wrongful death

claims against Trooper Annarino and Deputy Latic remain for discovery.
V. CONCLUSION
AmCare and Paramedic Taylor. AmCare and Paramedic Taylor have

answered plaintiffs’ complaint. Dkt. No. 32. Accordingly, all of plaintiffs’
claims remain against these defendants. First, the state law claims against
AmCare for negligent hiring, training and/or discipline (Count Seven) and for
vicarious liability (Count Eleven) remain. Second, the state law claims

against Paramedic Taylor for negligence (Count Eight), pain and suffering
(Count Nine), and the infliction of emotional distress (Count Ten) remain.
Third, the state law claims against AmCare and Paramedic Taylor for
wrongful death (Count Thirteen) remain.

The State defendants. First, the § 1983 claim against Trooper Annarino
for unlawful seizure and excessive force (Count One) remains. Second, the
disability claims against the State Police (Count Four) remain. Third, the
state law claims against Trooper Annarino for negligence (Count Eight), pain

and suffering (Count Nine), emotional distress (Count Ten), and wrongful
death (Count Thirteen) remain.
The County defendants. First, the § 1983 claims against Deputy Latic for
unlawful seizure and excessive force (Count Two) and failure to intervene

(Count Three) remain. Second, the disability claims against the County
(Count Four) remain. Third, the state law claims against Deputy Latic for
negligence (Count Eight), pain and suffering (Count Nine), and wrongful
death (Count Thirteen) remain.

Therefore, it is
ORDERED that
1. The State defendants’ motion to dismiss (Dkt. No. 29) is GRANTED in
part and DENIED in part;

2. The County defendants’ motion to dismiss (Dkt. No. 30) is GRANTED
in part and DENIED in part;
3. Plaintiffs’ ADA and Rehabilitation Act claims against Trooper
Annarino in his official capacity (Count Five) are DISMISSED;

4. Plaintiffs’ § 1983 municipal liability claim against the County (Count
Six) is DISMISSED;
5. Plaintiffs’ emotional-distress claim against Deputy Latic (Count Ten) is
DISMISSED;

6. Plaintiffs’ § 1983 substantive due process claim against Trooper
Annarino (Count Twelve) is DISMISSED;
7. Plaintiffs’ § 1983 substantive due process claim against Deputy Latic
(Count Twelve) is DISMISSED;

8. The State Police and Trooper Annarino shall file and serve an answer
to the remaining causes of action on or before Thursday, March 16, 2023; and
9. The County and Deputy Latic shall file and serve an answer to the
remaining causes of action on or before Thursday, March 16, 2023.
The Clerk of the Court is directed to terminate the pending motions and
set deadlines for the filing of an answer.
IT IS SO ORDERED.

Dated: March 2, 20238 David N {Hurd
Utica, New York. U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315731. Public record. Not legal advice.