Rothman v. City of New York

UNITED STATES DISTRICT COURT ; anf ( . i c ALLY □□□□

SOUTHERN DISTRICT OF NEW YORK te el □

i

JEFFREY ROTHMAN, Be

Plaintiff, a Sei

-against- No. 19 Civ. 0225 (CM)

THE CITY OF NEW YORK, ET AL.,

Defendants.

OPINION AND ORDER DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

McMahon, C.J.:

This action arises from an altercation that took place on December 13, 2017, when one of

the Defendants, New York City Police Detective Andrew Wunsch, grabbed a pen from the hand

of Plaintiff Jeffrey Rothman. Dissatisfied with the New York Police Department’s disciplinary

response to the incident, Rothman filed a nine-count complaint against Wunsch, his supervisors,

the NYPD’s top brass, and the City, alleging violations of the United States Constitution, the

New York State Constitution, and causes of action sounding in New York State common law.

Most of Plaintiff's case was dismissed last year. See Rothman v. City of New York et al.,

No. 19-cv-225, 2019 WL 3571051, at *18-19 (S.D.N.Y. Aug. 5, 2019) (Dkt. No. 37; “Dismissal

Order”). However, the Court allowed a few of Rothman’s claims to proceed on the theory that

Wunsch may have acted unreasonably when he grabbed -- or, unlawfully seized, as it were --

Rothman’s property, thus leaving open the possibility that Defendants could not avoid liability

on the grounds of qualified immunity.

Because the reasonability of an officer’s actions is dependent on the totality of the

circumstances, I noted that “the parties need . . . to go to trial as soon as possible” to determine

whether Rothman or Wunsch had the more convincing story to tell regarding the pen-pinching

incident. (/d. at *19.) Rothman disagrees. Pending before the Court is Rothman’s motion for

summary judgment on his remaining claims, based on the position that the record reveals “a

manifest lack of any legitimate law enforcement justification” for Wunsch’s actions. (Dkt. No.

82, Pl.’s Br, at 3.)

The motion is DENIED.

BACKGROUND

i Factual Background

The following facts, are drawn from Rothman’s Rule 56.1 statement (Dkt. No. 78-1;

56.1”) and Defendants’ counterstatement (See Dkt. No. 98; “Def.’s 56.1 Response”). The

undisputed facts are summarized in the light most favorable to Wunsch, the non-moving

party. See, e.g., Kendall v. Metro-North Commuter R.R., No. 12-cv-6015, 2014 WL 1885528, at

*2 (citing Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992),

On December 13, 2017, at approximately 4:40 p.m., Rothman, a civil rights attorney, was

attempting to serve a subpoena in the lobby of One Police Plaza, New York City, when he

encountered Defendant Wunsch at the reception desk. (PI.’s 56.1 § 4.) Wunsch informed

Plaintiff that the subpoena unit, where such matters are normally directed during business hours,

was closed for the day. (/d. § 6.) Plaintiff then attempted to serve the subpoena by leaving it at

the reception desk with Wunsch, who replied that he could not accept service. (/d.) Plaintiff then

began writing down Wunsch’s name and shield number for the purposes of preparing an

Affidavit of Service. (See Compl. §§ 39-40.)

Moments later, Wunsch grabbed Rothman’s pen right out of his hand. (Pl.’s 56.1 §

8.) According to Rothman, he was using the pen to write while Wunsch became “loud and

irate.” (Jd. {| 6-7.) According to the Defendants, Rothman “became irate and his voice got

loud,” as he “gestur[ed], flail[ed] and wav[ed] his arms arounds,” causing the pen and his hand to

pass “extremely close to Detective Wunsch’s face.” (Def.’s 56.1 Response {| 27-29.) In the

Defendants’ account, Wunsch felt “threatened,” because, in the past, “patrons of One Police

Plaza have hit Detective Wunsch with objects.” (/d. §§ 30-31.) Although Rothman denies that he

was irate, and denies that he put the pen “anywhere near Wunsch’s face” (PI. 56.1 § 12), Wunsch

claimed that he was “concerned . . . because plaintiff was disturbing the peace,” (Def.’s 56.1

Response, § 32.) The parties agree that Wunsch returned the pen shortly thereafter. (Pl. 56.1 § 8:

Def.’s 56.1 Response, § 36.)

Rothman informed the NYPD Civilian Complaint Review Board about the Incident,

claiming that Wunsch had acted discourteously and abused his authority as a police officer by

grabbing Rothman’s pen. (See Dkt. No. 80-2, Meyerson Decl. Ex. B.) The CCRB’s ensuing

investigation substantiated the claim that Wunsch acted discourteously, and recommended that

Detective Wunsch receive discipline in the form of command training. (/d.) Rothman was

notified of that decision on January 8, 2019.

II. Procedural History

Rothman brought suit against Wunsch; New York City; Wunsch’s commanding officer,

Vincent Flores; New York City Police Department Deputy Commissioner for Legal Matters

Lawrence Byrne; and New York City Police Commissioner James O'Neill. (Dkt. No. 9,

Complaint.) Rothman pleaded a variety of constitutional and state law claims, including

unlawful seizure, excessive force, assault and battery, conversion, and respondeat superior as to

the City with respect to the common law torts.

Defendants move to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) on numerous

grounds, including that: (1) Plaintiff fails to plead facts sufficient to plausibly infer that Wunsch

violated Plaintiffs constitutional rights; and (2) the individual Defendants are shielded from

liability by qualified immunity. The Court granted Defendants’ motion in part, and denied it in

part, sustaining Rothman’s claims for unlawful seizure (Count One), conversion (Count Two),

assault and battery (Count Four), and respondeat superior liability against the City in connection

with Rothman’s common law tort claims (Count Eight). (See generally, Dismissal Order).

With regard to Defendants’ potential qualified immunity defense, the Dismissal Order

accepted as true (as its was required to do when assessing a motion to dismiss) Rothman’s

allegation “that there was no reasonable law enforcement justification for the actions that form

the basis of .. . [Rothman’s] claims.” /d. at *18. The Court’s conclusion (for purposes of a

motion to dismiss that accepted the facts pleaded as true) that Wunsch “had no right to seize the

pen” obviously depended upon the allegation that Rothman and Wunsch had become entangled

in a “non-threatening disagreement.” Jd. at *6.

Rothman now moves for summary judgment on the remaining claims against Wunsch, as

well as on the related claims of vicarious liability against the City, arguing that the CCRB

investigation, including its interview of Wunsch, does not reveal “an objectively reasonable

legitimate law enforcement need/justification.” (Dkt. No. 82, Pl. Br. at 11.) Furthermore,

Rothman claims that the Defendants are collaterally estopped from relitigating the

reasonableness of the seizure in light of the CCRB’s conclusion that Wunsch acted

discourteously when grabbing the pen, as well as this Court’s comment in the Dismissal Order

that “there was no reasonable law enforcement justification” for Wunsch’s actions. (/d. at 17.)

LEGAL STANDARD

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant[s] [are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. At

summary judgment, the movants bear the initial burden of demonstrating the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004),

Once the movants meet that burden, the non-movants may defeat summary judgment

only by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ.

P. 56(c); Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Davis v. New York, 316 F.3d 93, 100 (2d

Cir. 2002). To survive summary judgment, the non-movants must present concrete evidence and

rely on more than conclusory or speculative claims. Quinn v. Syracuse Model Neighborhood

Corp., 613 F.2d 438, 445 (2d Cir. 1980). In assessing the record to determine whether genuine

issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable

factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145,

150 (2d Cir.2001).

DISCUSSION

I. ROTHMAN’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

a. The Defendants are not collaterally estopped.

As an initial matter, Rothman’s collateral estoppel arguments are contrary to

law. Neither the the CCRB’s findings, which substantiated a claim of “discourtesy” against

Detective Wunsch (See PI. Br. at 16-17) nor this Court’s statements in an opinion disposing of a

a pre-answer motion to dismiss precludes the Defendants from asserting a defense of qualified

immunity.

The doctrine of collateral estoppel prevents parties or their privies from relitigating in a

subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.

See Boguslavsky v. Kaplan, 159 F.3d 715, 719-20 (2d Cir. 1998). Collateral estoppel applies

when “(1) the identical issue was raised in a previous proceeding; (2) the issue was actually

litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to

litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final

judgment on the merits.” Boguslavsky, 159 F.3d at 720 (internal quotations omitted).

Collateral estoppel is inapplicable, because the issues investigated by the CCRB differ

from those now before this Court. The CCRB determined whether Detective Wunsch’s actions

were “discourteous,” which violates the NYPD Patrol Guide. (See Pl. Br., at 9). The instant

proceeding is to determine whether Wunsch’s actions were unconstitutional. Discourtesy and

unconstitutionality are two very different things — as any attorney qualified to practice in this

court ought to know.

The CCRB did not address whether Detective Wunsch’s actions constituted an unlawful

seizure in violation of the Fourth Amendment, or whether those actions were reasonably justified

under the circumstances. Therefore, Defendants are not collaterally estopped from arguing that

Detective Wunsch’s seizure of the pen was reasonable within the meaning of the Fourth

Amendment.

Likewise, it is of no consequence that the Court denied the motion to dismiss the claims

against Wunsch on the basis of qualified immunity. The litigants are well aware that when

reviewing a motion to dismiss, “a court must accept as true all of the allegations contained in a

complaint...” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (see also Dismissal Order at

10). Therefore, it is incorrect to say that this Court ever “decided” that Wunsch lacked a

reasonable justification for his actions. I did no such thing. The Court merely concluded that

Rothman’s allegation to that effect, supported by Rothman’s version of the facts without

permitting contradiction by Wunsch, was sufficient to survive a motion to dismiss. As it turns

out (and I cannot pretend to be surprised), Wunsch’s account of the story is substantially

different from Rothman’s and, if believed by a trier of fact, would permit the court to dismiss

this action on the ground of qualified immunity or a jury to find in favor of defendant. For that

we have to go to trial. Defendants are not collaterally estopped by the Dismissal Order, either.

b. A genuine dispute exists as to the reasonableness of Wunsch’s conduct.

Rothman can only obtain summary judgment on his constitutional claims if it is

undisputed that Wunsch’s actions “violated clearly established rights of which an objectively

reasonable official would have known.” Mullenix v. Luna, 136 S.Ct. 305, 308, 193 L.Ed.2d 255

(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565

(2009)). When a plaintiff pleads a constitutional violation based on an unlawful seizure,

reasonable justification for the seizure is a complete defense to liability. See Douglas v. City of

New York, 595 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (citing Weyant v. Okst, 101 F.3d 845, 852

(2d Cir. 1996)). The same is true with regard to Rothman’s state law claims: “New York law...

grant[s] government officials qualified immunity on state-law claims except where the officials’

actions are undertaken in bad faith or without a reasonable basis.” Jones v. Parmley, 465 F.3d

46, 63 (2d Cir. 2006).

By contrast, summary judgment is inappropriate if a factfinder could conclude that

Wunsch acted reasonably when he grabbed Rothman’s pen. Whether the seizure was unlawful

depends upon “the totality of the circumstances” -- matters which cannot be decided as a matter

of law. Carroll vy. City of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (internal alterations

omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).

As the court noted last year, “This is a ‘he said-he said’ case... .” (See Dismissal Order

at 39). The parties continue to dispute critical fact questions that can only be resolved by at trial,

and not as a matter of law. For example, Rothman states that even if he “. . . was loud at times

and/or displayed frustration and/or impatience at times and/or made non-threatening physical

gesticulations which his pen precisely in the manner that party Defendant Wunsch described . . .”

this did not justify the seizure “. . . in light of the absence of threat or contact, the absence of any

request or warning prior to seizing the pen, or simply moving further away from the pen.” (See

Pl.’s Br. at 12-13). On the other hand, Wunsch says he felt threatened by the pen at the time in

light of his prior experiences. (See Def. Response to PI. 56.1 §] 27-31). The parties also dispute

who started the incident that culminated in the seizure: Rothman claims he was writing when

Wunsch grabbed the pen, while Wunsch felt Rothman was threatening to use the writing utensil

as a weapon.

The questions cannot be resolved by a court; they can only be resolved by a trier of fact,

evaluating live testimony. Therefore, the resolution of this case still depends upon a factfinder’s

hearing each side’s case, then making factual findings and credibility determinations.

Rothman’s motion for summary judgment is DENIED.

SCHEDULING ORDER

As this Court noted in the Dismissal Order, Fed. R. Civ. P. 1 provides that the civil rules

are to be construed, administered and employed, by the court and by the parties, in a manner that

promotes the just, speedy and inexpensive determination of cases. This remains a case that must

be resolved at trial as soon as possible.

Currently, civil trials are suspended in this jurisdiction due to the COVID-19 pandemic

and the stay-at-home order in effect in New York state.

Therefore, the court enters the following order: by June 15, 2020, each party must turn

over to the other side a list of all witnesses it intends to call at trial and all documents and other

exhibits it intends to introduce. No party will be permitted to call any witness or to introduce

any document that does not appear on said list. The court suspends its usual rule for the

submission of a pre-trial order, and there will be no final pre-trial conference.

From and after June 15, 2020, the parties are on 72 hours’ notice for trial, provided that

no trial shall be scheduled before civil jury trials have commenced in this courthouse. When

called for trial the parties must appear; there will be no adjournments.

CONCLUSION

Plaintiff's motion for summary judgment is DENIED.

The Clerk of the Court is directed to close Docket Numbers 77 and 78. This shall

constitute the written opinion of the Court.

Dated: May 5, 2019

iy)

Le ot .

Chief Judge

BY ECF TO ALL PARTIES

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