Fincher v. The City of New York

UNITED STATES DISTRICT COURT EDLOECC #T:R ONIC ALLY FILED

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 9/29/2 021

SEAN FINCHER,

Plaintiff,

1:19-cv-6206 (MKV)

-against-

ORDER GRANTING SUMMARY

THE CITY OF NEW YORK, et al., JUDGMENT

Defendants.

MARY KAY VYSKOCIL, United States District Judge:

This case comes before the Court on a Motion for Summary Judgment, or in the

alternative a Motion for Judgment on the Pleadings. Plaintiff Sean Fincher filed a Second

Amended Complaint [ECF No. 66] against New York Police Department Officers Lauren

Morriarity, Joseph Mesaris, Stephanie Alba, and Michael Urena (the “NYPD Defendants”), and

New York Fire Department and EMT Defendants Andrew Zucker and Stephen Guttman

(together, the “Individual Defendants”) and the City of New York, alleging various violations of

his state and federal constitutional rights. Defendants moved for Summary Judgment or for

Judgment on the Pleadings [ECF No. 71] and filed a Memorandum of Law in Support. [Defs.

Mem., ECF No. 74]. Plaintiff thereafter opposed the motion [Pl. Opp., ECF No. 81], and

Defendants filed a reply [Defs. Reply; ECF No. 86]. Having carefully reviewed the record, the

Court grants Defendants’ Motion for Summary Judgment. 1

1 Because the Court grants Defendants’ Motion for Summary Judgment, the Court need not address the request for

Judgment on the Pleadings.

BACKGROUND

The following facts are drawn from Plaintiff’s 56.1 Counterstatement and are construed

in the light most favorable to Plaintiff, the non-moving party, for purposes of the Motion for

Summary Judgment. Hancock v. Cty. of Rensselaer, 882 F.3d 58, 64 (2d Cir. 2018).2

In May 2018, Plaintiff was a resident of the Father Smith Residence, a homeless shelter

in the Bronx. 56.1 ¶¶ 14-15. One night when Plaintiff came home to the shelter, the security

officer asked to search his backpack. 56.1 ¶ 17. Plaintiff refused and headed to the building of

the shelter in which his bed was located. 56.1 ¶¶ 20, 23. When he reached that building, another

security officer stopped him, after which Plaintiff “argued with another resident” “who asked

plaintiff if he ‘want[ed] to go outside.’” 56.1 ¶¶ 24-25.

Plaintiff understood that the other resident meant they “would be going outside the

building to physically fight.” 56.1 ¶ 26. Once outside, Plaintiff punched the other resident. 56.1

¶ 27. A shelter security officer was present “when plaintiff punched the other resident in the

face.” 56.1 ¶ 29. After the fight, Plaintiff headed to his bedroom. 56.1 ¶ 31.

A shift supervisor at the shelter called 911 “to report plaintiff’s assault on the other

resident.” 56.1 ¶¶ 32-33. She told “the 911 operator that Plaintiff had refused to be checked by

the security guard for weapons, that plaintiff had assaulted more than one person, and was

possibly intoxicated.” 56.1 ¶ 34. This information was then communicated to Defendants

OfficersMoriarty and Mesaris, who headed to the shelter. 56.1 ¶¶ 36-37. Once the officers

arrived, shift supervisor David Ortiz told them “that plaintiff had assaulted another resident of

the shelter by punching him in the face, and that the assault had been seen on footage from the

2 The Court cites to the Plaintiff’s 56.1 Counterstatements (“56.1”) as it incorporates the parties’ assertions of

material facts and responses. (See generally Defs.’ 56.1 Response [ECF No. 73]; Pl.’s 56.1 Response [ECF No.

82]).

shelter’s security cameras.” 56.1 ¶ 40. Other “[s]helter employees and security officers further

reported that plaintiff had acted violently towards one of the security officers by physically

pushing the security officer when [he] asked plaintiff to check his bag for weapons.” 56.1 ¶ 41.

Mr. Ortiz then told the officers that Plaintiff should be taken to a hospital to be evaluated, “and

only return to the shelter after hospital staff determined he no longer presented a risk to the

safety of others at the shelter.” 56.1 ¶ 42.

When asked about the events of the evening, Plaintiff said “he did not know of anything

that happened.” 56.1 ¶ 44. Mr. Ortiz then entered the room and said that Plaintiff had punched

someone in the face and that he “was a danger to the staff and residents of the shelter, and that

plaintiff should go to the hospital to . . . calm down, and come back when he was [not]

aggressive.” 56.1 ¶ 47. As this dialogue was occurring, Defendants Officers Urena and Alba

arrived at the shelter. 56.1 ¶ 49. Officers Moriarty, Mesaris, Alba, and Urena, “then waited

outside plaintiff’s bedroom until EMS arrived.” 56.1 ¶ 51. Defendants Guttman and Zucker

arrived shortly thereafter, and the officers told them that “they had been told plaintiff was

intoxicated, had been acting violently towards shelter staff, and had punched another individual

in the face.” 56.1 ¶¶ 53-54. Plaintiff refused to answer any of the questions Defendants

Guttman and Zucker asked about the events of the evening. 56.1 ¶¶ 56-58.

Defendants Guttman and Zucker then told Plaintiff that he “needed to go [to the] hospital

and get discharge papers stating that he was okay and the shelter would then allow him to

return.” 56.1 ¶ 61. Plaintiff was explicitly told by the officers that “he could either walk to the

ambulance and be taken to the hospital voluntarily[,] or he could be taken there in handcuffs.”

See 56.1 ¶ 62. “Plaintiff refused to voluntarily leave the shelter.” 56.1 ¶ 63. Mr. Ortiz then

reiterated that Plaintiff had to go to the hospital to be evaluated and that as shift supervisor he

was in charge of the shelter. 56.1 ¶¶ 66-68. After Plaintiff told Mr. Ortiz that he wasn’t “in

charge of nothing,” and that he should “[g]o play in traffic,” Mr. Ortiz said to Officer Urena that

“this is exactly why I said it was a safety issue.” 56.1 ¶¶ 69-70. Officer Urena then began to

handcuff Plaintiff and asked if he would cooperate and leave. See 56.1 ¶¶ 74, 75. After Plaintiff

said he would not leave, the NYPD Defendants placed Plaintiff in handcuffs. 56.1 ¶¶ 75-76.

Plaintiff was taken by ambulance to Lincoln Hospital in the Bronx. 56.1 ¶ 82. When

Plaintiff asked if he could use his phone during the ride, Officer Mesaris told him he could do so

once the handcuffs were removed at the hospital. 56.1 ¶¶ 84-85. Once at the hospital, Plaintiff

told two triage nurses and a doctor that he was fine and did not want medical treatment. 56.1 ¶¶

87-90. Once a doctor confirmed that Plaintiff “knew his name, the date, and the time,” his

handcuffs were removed. 56.1 ¶¶ 91-92. Plaintiff then called the shelter and later returned to the

shelter. 56.1 ¶¶ 94-96.

A few months later, Plaintiff filed this lawsuit. See Complaint [ECF No. 1].

LEGAL STANDARD

“Summary judgment is appropriate only when, ‘the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Coyle

v. United States, 954 F.3d 146, 148 (2d Cir. 2020) (citation omitted). “[T]he mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it “might affect

the outcome of the suit under the governing law.” Id. at 248. A material factual dispute is genuine

“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party bears the initial burden of demonstrating that there is no genuine issue

of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If the moving party satisfies its burden, “the opposing party must come

forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citing Anderson, 477 U.S. at 249).

The opposing party “‘must do more than simply show that there is some metaphysical doubt as to

the material facts’ and ‘may not rely on mere speculation or conjecture.’” PACA Tr. Creditors of

Lenny Perry's Produce, Inc. v. Genecco Produce Inc., 913 F.3d 268, 275 (2d Cir. 2019) (first

quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); then quoting

Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)); see also D’Amico v. City of New York,

132 F.3d 145, 149 (2d Cir. 1998) (noting that the opposing party “must offer some hard evidence

showing that its version of the events is not wholly fanciful”).

“In determining whether there is a genuine dispute as to a material fact, we must resolve

all ambiguities and draw all inferences against the moving party.” Hancock, 882 F.3d at 64. The

same standard applies where, as here, both parties move for summary judgment: “each party’s

motion must be examined on its own merits, and in each case all reasonable inferences must be

drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc.,

249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d

Cir. 1981)).

DISCUSSION

In his Second Amended Complaint, Plaintiff, who is proceeding pro se, alleges numerous

violations of state and federal constitutional rights. The Court construes the Second Amended

Complaint liberally and interprets it to “raise the strongest arguments that [it] suggests.”

Triestman v. Fed Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006 (per curiam). Plaintiff

asserts claims that he was falsely arrested, Am. Compl. ¶ 39, that the City failed to supervise and

train the Individual Defendants, Am. Compl. ¶¶ 55-69, that Defendant Urena failed to intervene,

Am. Compl. ¶ 88, that the denial of the use of a cellphone while handcuffed violated his right to

familial associations, Am. Compl. ¶ 93, and that the NYPD Defendants used excessive force in

placing the handcuffs on him, Am. Compl. ¶ 96. In his Opposition to Defendants’ Motion for

Summary Judgment on these claims, Plaintiff contends that his right to deny medical treatment

was infringed. Pl. Opp. at 10. The Court first addresses the alleged federal constitutional

violations before determining whether Plaintiff may bring state-level claims in this case.

I. PLAINTIFF FAILS TO STATE A FALSE ARREST CLAIM

Plaintiff alleges that the Individual Defendants violated his “Fourth and Fourteenth

Amendment” rights by handcuffing him and transporting him to the hospital. See Am. Compl. ¶

50-52. He asserts a Section 1983 claim for this purported false arrest. Am. Compl. ¶ 52.

To prevail on a claim under Section 1983, a plaintiff must establish “(1) that the

defendants deprived him of a right ‘secured by the Constitution or laws of the United States’; and

(2) that they did so ‘under color of state law.’” Giordano v. City of New York, 274 F.3d 740, 750

(2d Cir. 2001) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)).

“The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive

individuals of their federally guaranteed rights and to provide relief to victims if such deterrence

fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57

(1978)). There is no dispute in this case that Defendants acted under color of state law.

In analyzing a claim for false arrest under Section 1983, courts look to the law of the state

in which the arrest occurred. Jaegly v. Couch, 439 F.3d 149, 151–52 (2d Cir. 2006) (quoting Davis

v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). To prevail on a claim for false arrest under New

York law, the plaintiff must show that “(1) the defendant intended to confine him, (2) the plaintiff

was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the

confinement was not otherwise privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d

Cir. 2012) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335

N.E.2d 310 (1975)). An arresting officer may avoid liability for a claim of false arrest by

demonstrating either that he had probable cause for the arrest or that he is protected from liability

because he has qualified immunity. Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)

(citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).

Probable cause “is an absolute defense to a false arrest claim.” Stansbury v. Wertman,

721 F.3d 84, 89 (2d Cir. 2013) (quoting Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129,

139 (2d Cir. 2010)). “Probable cause to arrest exists when the officers have reasonably

trustworthy information as to facts and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that an offense has been committed by the person to be arrested.”

Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (ellipses and alteration omitted)

(quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)). In determining whether an

officer had probable cause, courts may consider only “those facts available to the officer at the

time of the arrest and immediately before it.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.

2006) (emphasis omitted) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)).

A false arrest claim “turns on whether probable cause existed to arrest for any crime, not whether

probable cause existed with respect to each individual charge.” Marcavage v. City of New York,

689 F.3d 98, 109 (2d Cir. 2012) (emphasis added) (citing Devenpeck v. Alford, 543 U.S. 146,

153-56 (2004)).

At the summary judgment stage, “[t]he question of whether or not probable cause existed

may be determinable as a matter of law if there is no dispute as to the pertinent events and the

knowledge of the officers.” Weyant, 101 F.3d at 852 (citing Singer v. Fulton Cnty. Sheriff, 63

F.3d 110, 118–19 (2d Cir. 1995). “Even where factual disputes exist, . . . a § 1983 claim may

fail if the plaintiff’s version of events establishes probable cause to arrest.” Jackson ex rel.

Jackson v. Suffolk County, 87 F. Supp. 3d 386, 404 (E.D.N.Y. 2014) (quoting Mistretta v.

Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998).

Plaintiff spends the large portion of his opposition arguing that no probable cause existed

under various provisions of New York’s Mental Health Laws. See Pl. Opp. at 11-19. But the

question of whether probable cause exists is directed at any crime. Here, the undisputed

evidence, even when viewed in Plaintiff’s favor, is sufficient to conclude that there was probable

cause to arrest Plaintiff for assault.

Under the New York Penal law, “a person is guilty of assault in the third degree when:

[w]ith intent to cause physical injury to another person, he causes such injury to such person or

to a third person; or [h]e recklessly causes physical injury to another person.” § 120.00 (1)-(2). It

is undisputed that Plaintiff punched another resident of the shelter. 56.1 ¶ 27. Plaintiff admits

that an employee of the shelter called 911 “to report plaintiff’s assault on the other resident.”

56.1 ¶ 33. At that time, the 911 operator was told that “plaintiff had refused to be checked by the

security guard for weapons, that plaintiff had assaulted more than one person, and was possibly

intoxicated.” 56.1 ¶ 34. Plaintiff further does not dispute that the information communicated to

the 911 operator was then passed along to “P.O. Moriarty and P.O. Mesaris” and that “P.O.

Moriarty read th[e] information before arriving at” the shelter. 56.1 ¶ 36. When the officers

arrived, Plaintiff admits that Mr. Ortiz “informed the NYPD Defendants that the altercation

between Plaintiff and the other Male Resident was seen on the facility’s surveillance cameras.”

56.1 ¶ 40; see also 56.1 ¶ 46. To that end, the officers were told that Plaintiff “had acted

violently towards one of the [shelter’s] security officers by physically pushing the security

officer when [he] asked plaintiff to check his bag for weapons.” 56.1 ¶ 41. In sum, Plaintiff

does not dispute 1) that he punched another resident, 2) that the shelter thereafter called 911, 3)

that the 911 operator was told he had punched multiple individuals, 4) that the officers were

briefed on the assault prior to arriving at the shelter, 5) and that the officers were told again at the

scene that Plaintiff had assaulted someone.

“Probable cause exists when an officer has ‘knowledge or reasonably trustworthy

information sufficient to warrant a person of reasonable caution in the belief that an offense has

been committed by the person to be arrested.’” Curley v. Village of Suffern, 268 F.3d 65, 70-71

(2d Cir. 2001) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). Plaintiff casts

no doubt on the circumstances leading up to his arrest. Before the officers arrived, they had been

told that Plaintiff had assaulted multiple people. Once on the scene, Plaintiff never rebutted the

shelter’s staff when they reiterated this statement in front of him. See 56.1 ¶¶ 41, 44. And

though Plaintiff now argues that Mr. Ortiz never actually saw the video of the altercation, see

56.1 ¶ 40, Plaintiff admits that before the officers arrested Plaintiff, Mr. Ortiz “informed the

NYPD that the altercation between Plaintiff and the other Male Resident was seen on the

facility’s surveillance cameras.” 56.1 ¶ 40. “[I]t is well established that a law enforcement

official has probable cause to arrest if he received his information from some person,” such as an

“eyewitness,” “unless the circumstances raise doubt as to the person’s veracity.” Panetta v.

Crowley, 460 F.3d 388, 396 (2d Cir. 2006) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d

Cir. 2000) and Singer v. Fulton County Sherrif, 63 F.3d 110, 119 (2d Cir. 1995)).

On the undisputed facts, there can be no doubt that the officers had probable cause to

arrest Plaintiff for assault. Accordingly, the Court grants Defendants’ summary judgment on the

false arrest claim.3 Defendants therefore are entitled to summary judgment on Plaintiff’s false

arrest claim. See Stansbury, 721 F.3d at 89.

II. PLAINTIFF FAILS TO STATE A CLAIM FOR EXCESSIVE FORCE

Plaintiff brings an excessive force claim against NYPD Defendants Urena, Alba,

Moriarty and Mesarias for their actions during the handcuffing at the shelter. Am. Compl. ¶ 96.

Plaintiff contends that as a result of the handcuffing he suffered from “severe pain to his neck,

back, and shoulder areas.” Am. Compl. ¶ 96. Other than that brief description, Plaintiff does not

allege how the officers used excessive force or how he was injured as a result.

The Fourth Amendment protects people from the use of excessive force by police during

an arrest. Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490

U.S. 386, 395 (1989)). The test for excessive force during an arrest “is one of ‘objective

reasonableness.’” Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (collecting cases).

“[T]he reasonableness question is whether the officers’ actions were ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002) (quoting Graham, 490 U.S. at

397). “[A] de minimis use of force will rarely suffice to state a Constitutional claim.” Romano v.

Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson v. McMillian, 503 U.S. 1, 9–10 (1992)).

As the Supreme Court has acknowledged, “Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham, 490

U.S. at 396 (internal quotation marks and citation omitted).

3 Because Plaintiff’s false arrest claim fails, the Court does not reach the question of whether Defendants are entitled

to qualified immunity.

As the Second Circuit has explained, a district court does not err in dismissal where there

is “nothing in the record to support plaintiff’s allegations other than plaintiff’s own contradictory

and incomplete testimony” and despite drawing all reasonable inferences in plaintiff’s favor, “no

reasonable person could believe [plaintiff’s] testimony.” Jeffreys v. City of New York, 426 F.3d

549, 555 (2d Cir. 2005) (citation omitted). The record here is devoid of anything that would

support Plaintiff’s allegations.

The following facts relating to the handcuffing are undisputed. After discussing the

events of the evening with Plaintiff, Defendant Urena “placed one handcuff on plaintiff’s right

wrist.” 56.1 ¶ 75. Defendant Urena then asked if Plaintiff would resist, to which he replied “I’m

not going anywhere.” 56.1 ¶ 76. When the officers then tried to direct Plaintiff’s arm behind his

back to place the second loop of the handcuff, Plaintiff “resisted being handcuffed by clenching

his arms and clasping his hands together in front of his torso.” 56.1 ¶ 76. Then, the officers

“leaned plaintiff’s torso forward towards his knees and brought his hands behind his back and

attached the second handcuff” around his left wrist. 56.1 ¶ 77. Throughout this encounter,

“Plaintiff remained seated on his bed.” 56.1 ¶ 78. Plaintiff was not thrown on the floor; nor did

he have knees placed on him to facilitate the handcuffing. 56.1 ¶ 80-81. After the cuffs were

firmly on Plaintiff, the officers “helped him stand up and walked him out of the” shelter. 56.1 ¶

81. At Lincoln Hospital, Plaintiff refused any treatment and said to the attending doctor that “I

am absolutely fine I have no complaints I don[‘]t want any medical attention or care.” 56.1 ¶ 90.

Later, even after Plaintiff returned to the shelter and had gone to another doctor, he “did not

complain of any pain in his back, neck, or shoulders” and was “never diagnosed with any ailment

in relation to any injury suffered as a result of being handcuffed.” 56.1 ¶¶ 98-99.

Drawing all reasonable inferences in Plaintiff’s favor, nothing in the record supports an

injury to his person as a result of the handcuffing. Thus, the Court grants summary judgment in

favor of Defendants on Plaintiff’s excessive force claim. Jeffreys, 426 F.3d at 555.

III. PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF THE RIGHT

TO FAMILIAL ASSOCIATION

Plaintiff asserts that his constitutional right to familial association was violated when he

could not access his cell phone while handcuffed in transport to Lincoln Hospital. Am. Compl.

¶¶ 91, 93. To the extent that the right could apply to texts or phone calls while in police

custody—a proposition Plaintiff does not support, an actionable claim requires “that the state

action was specifically intended to interfere with the family relationship.” Gorman v. Rensselaer

Cty., 910 F.3d 40, 48 (2d Cir. 2018). Plaintiff does not address this claim in his opposition and

appears to abandon it. The exceedingly limited facts alleged in the Second Amended Complaint

that a Defendant “deni[ed]” his “request to use his cell phone” do not speak to how that denial

was “specifically intended to interfere with [Plaintiff’s] family relationship.” Gorman, 910 F.3d

at 48. In fact, Plaintiff admits he was able to call his sister after he met with a doctor and left the

hospital. 56.1 ¶ 93. Plaintiff’s claim that Defendants violated his right to familial associations

therefore fails as a matter of law. Defendant’s motion for summary judgment on that claim is

accordingly granted.

IV. PLAINTIFF FAILS TO STATE A CLAIM FOR A VIOLATION OF THE

COMMON LAW RIGHT TO REFUSE MEDICAL TREATMENT

For the first time in his opposition, Plaintiff alleges that he was denied a “long

recognized” right to refuse medical treatment when he was taken to Lincoln Hospital. Pl. Opp.

at 10-11. While there does exist a right cognizable under the Constitution to refuse medical

treatment, see Pabon v. Wright, 459 F.3d 241, 251 (2d Cir. 2006), Plaintiff does not explain how

this right was violated by any of the Defendants’ actions. Indeed, when he was assessed at the

hospital, Plaintiff refused medical treatment. 56.1 ¶ 90. Plaintiff then left the hospital, without

treatment. 56.1 ¶¶ 91-92. Construing the facts liberally and in Plaintiff’s favor, the Court can

find no violation of a right to refuse medical treatment. Accordingly, the Court grants

Defendant’s motion for summary judgment on that claim.

V. PLAINTIFF FAILS TO STATE A CLAIM FOR FAILURE TO INTERVENE

Plaintiff alleges that Defendant Urena is liable under Section 1983 for failure to prevent

his allegedly unlawful detention or seizure. See Pl. Opp. at 21. It is well established that absent

an underlying constitutional violation, there can be no failure to intervene violation. See Wieder

v.City of New York, 569 F. App’x 28, 30 (2d Cir. 2014) (Summary Order) (“Because the

underlying constitutional claims were properly dismissed, we also affirm the district court's

dismissal of plaintiff's failure to intervene claim.”). Having determined that no constitutional

violation with respect to Plaintiff’s detention exists in this case, the Court grants summary

judgment in Defendants’ favor on Plaintiff’s failure to intervene claim.

VI. PLAINTIFF’S MONELL CLAIMS FAIL

Plaintiff contends that the City condoned a policy that allowed the Individual Defendants

to use excessive force, Am. Compl. ¶ 99, and failed to supervise the Individual Defendants. Am.

Compl. ¶ 55.

Under the Supreme Court’s decision in Monell v. Department of Social Service, local

governments and individuals in their official capacity may be held liable in Section 1983 actions

when it can be shown that “the denial of a constitutional right [] was caused by an official

municipal policy or custom.” Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019).

“Monell does not provide a separate cause of action for the failure by the government to train its

employees; it extends liability to a municipal organization’s failure to train, or the policies or

customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006); Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013).

Because, as discussed above, there exists no constitutional violation, Plaintiff’s Monell claims

fail as a matter of law. Accordingly, the Court grants summary judgment in Defendants’ favor.

VII. THE COURT CANNOT ENTERTAIN PLAINTIFF’S STATE-LEVEL CLAIMS

Defendants argue that this Court should dismiss any remaining state-level claims for

failure to comply with conditions precedent for bringing a claim against New York or its

employees “founded upon tort.” Defs. Mem. at 24 (citing New York General Municipal Law

(“GML”) §§ 50-e(1)(a), 50-h(1)). “It is well settled that federal courts entertaining state law

claims against municipalities are obligated to apply any applicable state law notice-of-claim

provisions.” Johnson v. City of New York, 2019 U.S. Dist. LEXIS 10867, at *34 (S.D.N.Y. Jan.

23, 2019). “Under New York law, a plaintiff must file a notice of claim before suing municipal

defendants in a personal injury action.” Rentas v. Ruffin, 816 F.3d 214, 226-27 (2d Cir. 2016).

Thereafter, the City may demand an examination hearing to assess the claim before beginning

litigation. See GML § 50-h. Defendants contend that Plaintiff never appeared at his examination

hearing. Defs. Mem. at 24. Plaintiff rejoins that the two notices for the hearing were sent to

addresses at which he no longer lived. 56.1 ¶ 13.

The letter of the New York General Municipal Law provides that the City is entitled to an

examination hearing, which Plaintiff must attend. GML § 50-h. Notice of claim requirements

are construed strictly by New York state courts and “[f]ailure to comply with [them] ordinarily

requires dismissal.” Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir.

1999) (citing Murray LeRoy Cent. Sch. Dist., 67 N.Y.2d 775, 775, 500 N.Y.S.2d 643, 643, 491

N.E.2d 1100, 1100 (1986)). “This holds even where the proffered reason is that plaintiff never

received the notice, though the City has mailed the demand.” Duncan v. City of New York, 2018

U.S. Dist. LEXIS 117126, at *10 (E.D.N.Y. June 19, 2018). Construing the facts in the light

most favorable to Plaintiff, it is clear that he did not attend a required examination hearing on his

state-level claims. Thus, the Court concludes it must grant Defendants’ summary judgment

request that Plaintiffs state-level claims be deemed barred at this juncture.*

CONCLUSION

For the reasons stated herein, the Court GRANTS Defendants’ Motion for Summary

Judgment. The Clerk of the Court respectfully is requested to terminate the motion at ECF No.

71 and close the case.

SO ORDERED.

Date: September 29, 2021 K. (/

New York, NY MARY KAY IVYSHOCIL

United StatesDistrict Judge

+ A district court also has discretion to “decline to exercise supplemental jurisdiction” after “dismiss[ing] all claims

over which it has original jurisdiction.” 28 U.S.C. § 1367(c). In general, “if the federal claims are dismissed before

trial, .. . the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726

(1966). The Court “balances the traditional values of judicial economy, convenience, fairness, and comity.” Kolari

v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (internal quotation marks omitted). All factors

here weigh in favor of declining to exercise supplemental jurisdiction over Plaintiff’s state law-claims, even if

Plaintiff had complied with the notice-of-claim provisions.

15