# Rothman v. City of New York

> District Court, S.D. New York · May 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10322749

## Case

- **Court:** District Court, S.D. New York
- **Decided:** May 5, 2020
- **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/10322749

## Opinion text

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

10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10322749. Public record. Not legal advice.