Rossy v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARGARITA ROSSY, as Administrator of the

Estate of Jose Hernandez-Rossy,

Plaintiff,

v. DECISION AND ORDER

17-CV-937S

CITY OF BUFFALO, JUSTIN TEDESCO,

JOSEPH ACQUINO, POLICE

COMMISSIONER DANIEL DERENDA, and

AMERICAN MEDICAL RESPONSE,

Defendants.

I. INTRODUCTION

This is a civil rights and wrongful death action commenced by Plaintiff Margarita

Rossy (“Plaintiff”), the administrator of Jose Hernandez-Rossy’s (“Hernandez-Rossy”)

estate, for claims arising out of Hernandez-Rossy’s injuries and death sustained in a

police-involved shooting. Plaintiff sues Buffalo Police Officers Justin Tedesco and Joseph

Acquino, the police officers who stopped and shot Hernandez-Rossy; the Police

Commissioner; the City of Buffalo; and American Medical Response (“AMR”), the

ambulance company that treated and transported Hernandez-Rossy following the

shooting. Plaintiff alleges that excessive force and negligence caused Hernandez-

Rossy’s suffering and death.

Currently pending are four summary-judgment motions. (Docket Nos. 98, 99, 103,

107.) Two of the motions address Plaintiff’s Fifth Cause of Action, which alleges that

AMR negligently rendered first aid and treatment to Hernandez-Rossy, leading to his

death. (Docket Nos. 98, 99.) AMR seeks dismissal of that claim (and itself from this

action), while Plaintiff seeks summary judgment against AMR. Id. This Court addresses

these two motions in a separate Decision and Order filed contemporaneously herewith

(Docket No. 143).

Considered here are the remaining two motions. The City of Buffalo (“City”),

Officers Tedesco and Acquino, and then-Police Commissioner Daniel Derenda

(collectively, “City Defendants”) move for summary judgment or for judgment on the

pleadings dismissing the claims against them. (Docket No. 107.1) Plaintiff moves for

summary judgment in her own favor against the City Defendants. (Docket No. 103.2)

For the reasons explained below, the City Defendants’ motion will be granted in

part and denied in part. More particularly, this Court will grant the City Defendants

summary judgment on that portion of the First Cause of Action alleging an Eighth

Amendment violation, as well as the Second, Third, Fourth, Fifth, Sixth, and Seventh

Causes of Action. Summary judgment will be denied to the City Defendants on that

portion of the First Cause of Action alleging violations of Hernandez-Rossy’s Fourth and

Fourteenth Amendment rights. Plaintiff’s motion for summary judgment will be denied.

1In support of their motion, the City Defendants submitted a Statement of Undisputed Facts (Docket

No. 107-2); an Attorney Declaration, with exhibits (Docket No. 107-3); a Memorandum of Law (Docket No.

107-1); and a Reply Memorandum (Docket No. 131). In opposition, Plaintiff submitted Objections to the

City Defendants’ Statement of Material Facts (Docket No. 119); a Memorandum of Law (Docket No. 121);

and an Attorney Declaration (Docket No. 120).

2In support of her motion, Plaintiff submitted a Statement of Undisputed Facts (Docket No. 104); a

Memorandum of Law (Docket No. 105); an Attorney Declaration, with exhibits (Docket No. 106); a CD

containing exhibits, transcripts and recordings of 911 calls, police radio transmission recordings and

transcripts, cellphone video recording, surveillance video recording, and internal affairs documents for

Officers Acquino and Tedesco (Docket No. 129); and a Reply Memorandum (Docket No. 132). In

opposition, the City Defendants submitted a Memorandum of Law and Response to Plaintiff’s Statement of

Facts (Docket No. 118).

II. BACKGROUND

A. The Complaint and Alleged Causes of Action

Plaintiff sues to recover for acts of alleged police brutality against Hernandez-

Rossy, starting with a May 7, 2017 traffic stop by Officers Tedesco and Acquino, and

ending with Officer Tedesco’s fatal shooting of Hernandez-Rossy (Complaint (“Compl.”),

Docket No. 1, ¶¶ 1, 2, 3, 8).

The complaint alleges seven causes of action. The First Cause of Action alleges

that Officers Tedesco and Acquino violated Hernandez-Rossy’s rights in causing his

death, depriving him of his Fourth, Eighth, and Fourteenth Amendment rights (id. ¶¶ 26-

27).

The Second Cause of Action alleges a violation of 42 U.S.C. § 1981 by Defendant

City of Buffalo for its officers’ racial profiling of Hernandez-Rossy, in violation of the

Fourth, Eighth, and Fourteenth Amendments (id. ¶¶ 29-31).

Plaintiff’s Third Cause of Action alleges Monell municipal liability against the City

for the officers’ alleged misconduct (id. ¶¶ 33-35). See Monell v. Dep’t of Soc. Servs. of

City of N.Y., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

In the Fourth Cause of Action, Plaintiff alleges that the City and Commissioner

Derenda are liable under 42 U.S.C. §§ 1981 and 1983 for the actions of Officers Tedesco

and Acquino by failing to properly hire, train, supervise, or discipline them (id. ¶¶ 37-38).

This is the only claim alleged against Commissioner Derenda.

The Fifth Cause of Action alleges a state common law wrongful death claim against

the City, Officers Tedesco and Acquino, and AMR for negligently rendering first aid and

treatment to Hernandez-Rossy, which caused him to bleed to death (id. ¶¶ 40-41).

The Sixth Cause of Action alleges a state-law negligence claim against the City

and Officers Tedesco and Acquino for causing grievous bodily injuries to Hernandez-

Rossy (id. ¶¶ 43-44).

Finally, the Seventh Cause of Action alleges that the City (and its employees)

engaged in official misconduct by tampering with evidence and committing spoliation (id.

¶¶ 46-49).

Plaintiff seeks compensatory and punitive damages (id. WHEREFORE Cl., at p.

113).

B. Facts

Each side submitted a Statement of Facts and objections to their opponent’s

Statement of Facts (Docket Nos. 104, 107, 118, 119). The documents contain widely

disparate versions of the facts and characterizations of the allegations. Pursuant to Local

Civil Rule 56 (a)(1) and (2), this Court accepts the few facts agreed upon by the parties,

while noting material disagreements.

1. Plaintiff’s Version

a. Traffic Stop and Shooting of Jose Hernandez-

Rossy

On May 7, 2017, Officers Tedesco and Acquino were driving on East Street in the

Riverside neighborhood of Buffalo when they observed Hernandez-Rossy also driving

there (City Defendants’ Statement of Material Facts (“City Defs. Statement”), Docket No.

107-2, ¶¶ 2, 4; Plaintiff’s Statement of Undisputed Material Facts (“Pl. Statement”), Docket

No. 104, ¶ 2). Plaintiff alleges that the officers pursued Hernandez-Rossy for several

3 All page citations are to the document page numbers generated by the court’s Case

Management/Electronic Case Files system (“CM/ECF”).

blocks, in violation of police department regulations for conducting vehicle pursuits (Pl.

Statement, ¶¶ 3, 4, 5). Plaintiff contends that Hernandez-Rossy slowed and stopped

several times as the officers’ patrol car passed him and cut him off (Plaintiff’s Objections

to City Defendants’ Statement of Material Facts (“Pl. Response”), Docket No. 119, ¶ 8).

The City Defendants dispute whether the officers’ actions violated departmental policy

(City Defendants’ Local Rule 56 (a)(2) Response to Plaintiff’s Statement of Facts (“City

Defs. Response”), Docket No. 118-1, ¶ 5).

After Hernandez-Rossy stopped his vehicle, Officers Acquino and Tedesco

approached the driver-side door, and Officer Acquino engaged with Hernandez-Rossy

(Pl. Statement, ¶ 6). Officer Acquino reached into the car, opened the driver’s door,

entered the vehicle, and made physical contact with Hernandez-Rossy (id.). The car then

accelerated forward with Officer Acquino situated on Hernandez-Rossy’s lap (id.). The

car first struck the officers’ patrol car and then crossed through the intersection of Garfield

Street and Hartman Place before crashing into a house (id. ¶¶ 6, 7).

During this incident, Officer Acquino’s right ear was torn (id. ¶ 8). Plaintiff claims

that Hernandez-Rossy was unarmed, did not have a gun in his car, and did not cause

Officer Acquino’s injury. She supports this assertion with the findings of the subsequent

New York State Attorney General’s investigation of the incident, which concluded that

Officer Acquino’s injuries were not caused by a gunshot wound (id. ¶¶ 9, 10).

After the crash, Officer Tedesco entered the passenger-side door and, with

Officer Acquino, “physically engaged with” Hernandez-Rossy, taking him out of the car

and down to the ground. Officer Acquino then disengaged from Hernandez-Rossy, while

Officer Tedesco continued to restrain him on the ground in a leg scissors hold (id. ¶ 11).

Officer Tedesco and Hernandez-Rossy at some point then regained their feet, at which

time Officer Tedesco drew his service weapon (id. ¶¶ 13, 14). As the two men continued

to struggle with one another, Officer Tedesco hit Hernandez-Rossy with his weapon (id.

¶ 14). Officer Tedesco next took a one-knee firing position and fired three shots at

Hernandez-Rossy, hitting him in the back of the upper left arm and severing his brachial

artery (id. ¶ 15). Hernandez-Rossy later died from exsanguination (id.).

According to Plaintiff, Officers Tedesco and Acquino did not use the police radio

until after Officer Tedesco shot Hernandez-Rossy (id. ¶ 18). Officer Tedesco later

testified (falsely according to Plaintiff) that he first radioed before the struggle began and

before he fired (id. ¶ 21). Plaintiff, however, recites the timing of 911 calls made by

eyewitnesses at 5:12 p.m., before the officers radioed (id. ¶¶ 18, 22). Plaintiff concludes

that Officer Tedesco falsely reported that a firearm was in Hernandez-Rossy’s vehicle

before he discharged his weapon (id. ¶¶ 19, 20, 23). Plaintiff also claims that the officers

violated department policy by not immediately reporting shots fired by an officer (id. ¶ 24).

b. Medical Treatment and Transport of Hernandez-

Rossy

After he was shot, Hernandez-Rossy ran to 568 Tonawanda Street (Pl. Statement,

¶¶ 26, 28). A 911 caller reported that Hernandez-Rossy was “bleeding out” in her

neighbor’s driveway on Tonawanda Street (id. ¶¶ 25, 26). A Buffalo Fire Department

truck arrived and rendered first aid.

Plaintiff relies on the testimony of Buffalo Police Officer Richard Hy, who was at

the scene and observed Hernandez-Rossy’s condition. Officer Hy noted that when

firefighters arrived, Hernandez-Rossy was still awake, moving, and conversant, but

breathing heavily. Hernandez-Rossy then lost consciousness and “went limp” one minute

after being turned over to the Fire Department (Supporting Declaration of Nelson S. Torre,

Esq. (“Pl. Atty. Decl.”), Docket No. 102, Ex. 33, p. 26).

Defendant AMR’s ambulance and crew arrived at 568 Tonawanda Street at 5:32

p.m. and rendered care to Hernandez-Rossy (Pl. Statement, ¶ 29). AMR’s ambulance

prepared Hernandez-Rossy for transport at 5:40 p.m. and departed the scene at 5:46

p.m. (id.).

2. City Defendants’ Version

The City Defendants contest that Officers Tedesco and Acquino engaged in a

“vehicle pursuit” or high-speed chase, or that their stop of Hernandez-Rossy’s vehicle

somehow violated department policy (City Defs. Response, ¶¶ 3, 4, 5). The City

Defendants maintain that the officers observed Hernandez-Rossy smoking marijuana and

attempted to stop his vehicle, which Plaintiff disputes (City Defs. Statement, ¶¶ 7, 10; but

cf. Pl. Response, ¶¶ 5-6, 7).

Upon approaching the stopped vehicle, Officer Acquino asked Hernandez-Rossy

questions but he did not answer. Hernandez-Rossy instead moved his hand to the top

right pocket of his jacket (City Defs. Statement, ¶¶ 11-12). Officer Acquino believed that

Hernandez-Rossy possessed a handgun (id. ¶¶ 13-16), which Plaintiff vehemently denies

(Pl. Response, ¶¶ 12-16). Hernandez-Rossy then pulled Officer Acquino into his vehicle,

tried to close the driver-side door, and accelerated with Officer Acquino partially inside

and struggling with Hernandez-Rossy (City Defs. Statement, ¶¶ 17, 18, 20). Seeing a

cyclist in the vehicle’s path, Officer Acquino grabbed the steering wheel and directed

Hernandez-Rossy’s vehicle into the patrol car (id. ¶¶ 19, 21-23). Plaintiff argues that

eyewitnesses refute the City Defendants’ version of events (Pl. Response, ¶¶ 19, 21-23).

Officer Acquino claims that he then heard the “loudest fireworks” go off in his right

ear and felt a burning sensation (City Defs. Statement, ¶ 24). He exited the vehicle

bleeding, with his right ear partially detached (id. ¶ 25). Officer Acquino concluded that

Hernandez-Rossy had shot him (id. ¶¶ 26, 27). Plaintiff denies these allegations (Pl.

Response, ¶¶ 24-27).

At this point, Officers Tedesco and Acquino extracted Hernandez-Rossy from the

vehicle (City Defs. Statement, ¶ 28). Officer Tedesco tried to restrain Hernandez-Rossy

and told him that he would shoot him if he continued resisting (id. ¶¶ 30, 31). Meanwhile,

Officer Acquino moved away from the struggle and yelled that he had been shot and

needed help (id. ¶¶ 27, 32). Officer Tedesco then pulled his service weapon, pointed it

at Hernandez-Rossy, and ordered him to get on the ground or he would be shot (id. ¶ 33).

Plaintiff denies these allegations (Pl. Response, ¶¶ 28-33).

The City Defendants further claim that Hernandez-Rossy continued to resist and

ran away (City Defs. Statement, ¶ 34), which Plaintiff denies (Pl. Response, ¶ 34). Officer

Tedesco again warned Hernandez-Rossy that he would shoot him if he continued to resist

or flee (City Defs. Statement, ¶¶ 35, 36), which Plaintiff also denies (Pl. Response, ¶¶ 35-

36). Hernandez-Rossy did not stop, resulting in Officer Tedesco firing three shots, which

the City Defendants contend was consistent with departmental regulations (City Defs.

Statement, ¶ 37). Plaintiff responds that this shooting violated the department’s Manual

of Procedures for the use of deadly force (Pl. Response, ¶ 37).

Wounded, Hernandez-Rossy ran for two blocks, while Officer Tedesco chased him

(City Defs. Statement, ¶ 39). Buffalo Police officers responded to Officer Tedesco’s calls

and found Hernandez-Rossy on Tonawanda Street (City Defs. Statement, ¶ 41). Back at

Garfield Street, other Buffalo Police officers arrived and found Officer Acquino (id. ¶ 42;

Pl. Response, ¶¶ 41, 42).

Meanwhile, Officer Tedesco joined the other officers at Tonawanda Street with

Hernandez-Rossy (City Defs. Statement, ¶ 43; but cf. Pl. Response, ¶ 43). The officers

tended to Hernandez-Rossy’s wound and handcuffed him (City Defs. Statement, ¶¶ 44,

45-46). As these officers applied a tourniquet, Buffalo Fire Department personnel and

then AMR’s ambulance arrived (id. ¶ 46). Plaintiff disputes this chronology (Pl. Response,

¶¶ 45, 46).

The New York State Attorney General’s office investigated this incident (City Defs.

Statement, ¶¶ 49-50; Declaration of Robert E. Quinn (“City Defs. Atty. Decl.”), Docket No.

107-3, ¶ 7, Ex. A). After investigation, it concluded that it was reasonable for Officer

Tedesco to believe that Hernandez-Rossy had just committed felonies involving the use

of physical force (including attempted murder) and was fleeing. It further found that

Hernandez-Rossy resisted arrest and failed to heed Officer Tedesco’s command to stop

and his warning that he might be shot (City Defs. Statement, ¶¶ 51, 52; City Defs. Atty.

Decl., Ex. A, p. 16). See N.Y. Pen. L. § 35.30(1)(a)(1) (police officer justified using deadly

physical force to prevent escape of person the officer believed committed a felony or

attempted to commit a felony involving the use or attempted use or threatened imminent

use of physical force against a person). The Attorney General found that the

reasonableness of the officers’ actions was not affected by the fact that they were

ultimately mistaken that Hernandez-Rossy was armed4 (City Defs. Statement, ¶ 55; City

Defs. Atty. Decl., Ex. A, p. 16).

4 Plaintiff maintains that the conclusions from the Attorney General’s report are inadmissible (Pl.

Response, ¶¶ 52, 55).

On April 12, 2018, then-Buffalo Police Commissioner Bryon Lockwood exonerated

Officers Tedesco and Acquino, finding that their use of force was justified (City Defs.

Statement, ¶ 56).

III. DISCUSSION

A. Legal Standards

1. Dispositive Motions

a. Summary Judgment

Summary judgment is appropriate if “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,”

Fed. R. Civ. P. 56 (a). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party,” id.

The movant seeking summary judgment has the burden (through pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials, Fed.

R. Civ. P. 56 (c)(1)), to demonstrate the absence of a genuine issue of material fact, Ford

v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

In deciding a motion for summary judgment, the evidence and the inferences

drawn from the evidence must be “viewed in the light most favorable to the party opposing

the motion,” Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L.

Ed. 2d 142 (1970). “Only when reasonable minds could not differ as to the import of

evidence is summary judgment proper,” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.

1991). The function of the court is not “to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue of fact for trial,” Anderson,

supra, 477 U.S. at 249. “Assessment of credibility and choices between conflicting

versions of the events are matters for the jury, not for the court on summary judgment,”

Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat

summary judgment, Anderson, supra, 477 U.S. at 252. A nonmoving party must do more

than cast a “metaphysical doubt” as to the material facts; it must “offer some hard

evidence showing that its version of the events is not wholly fanciful,” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538

(1986). That is, there must be evidence from which the jury could reasonably find for the

nonmoving party, Anderson, supra, 477 U.S. at 252.

This district’s Local Civil Rules require that the moving party submit “a separate,

short, and concise statement, in numbered paragraphs, of the material facts as to which

the moving party contends there is no genuine issue to be tried,” W.D.N.Y. Loc. Civ. R. 56

(a)(1), and the opponent to submit a response to each numbered paragraph in the

movant’s statement, id. R. 56 (a)(2). Each numbered paragraph in the movant’s

statement will be deemed admitted unless specifically controverted by a correspondingly

numbered paragraph in the opponent’s statement, id.

b. Judgment on the Pleadings

The City Defendants alternatively move for judgment on the pleadings under

Federal Rule of Civil Procedure 12 (c). Under that rule, “after the pleadings are closed—

but early enough not to delay trial—a party may move for judgment on the pleadings,”

Fed. R. Civ. P. 12 (c). Pleadings include the complaint, answer, and documents attached

as exhibits thereto, L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)

(citing Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009) (per curiam)); see Fed.

R. Civ. P. 10(c).

If matters outside of these pleadings are presented and not excluded, the motion

must be converted to one seeking summary judgment, Fed. R. Civ. P. 12 (c); Nance v.

Equinox Music, No. 09CV7808, 2010 WL 4340469, at *2 (N.D. Ill. Oct. 22, 2010). The

Rule 12(c) motion may be granted only if all material issues can be resolved on the

pleadings; if there remains an issue of fact, however, the motion must be denied, 5C

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1368, at 248, 251

(Civil 3d ed. 2004).

Given the extensive materials submitted in relation to the City Defendants’ motion,

this Court will treat it as one seeking summary judgment rather than judgment on the

pleadings (see City Defs. Atty. Decl. with exhibits; cf. Supporting Declaration of Nelson

S. Torre, Esq. with exhibits (“Pl. Atty. Supporting Decl.”), Docket No. 106). This Court

therefore need not assume that the pleadings are true as required for a Rule 12(c) motion,

cf. 5C Federal Practice and Procedure, supra, § 1368, at 238, 242.

2. Qualified Immunity

Government officials performing discretionary functions generally are shielded

from individual liability by qualified immunity, see Frank v. Reilin, 1 F.3d 1317, 1327 (2d

Cir. 1993), “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known,” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 196 (1982). “If it was

objectively reasonable for the defendant to believe that his act did not violate the plaintiff’s

constitutional rights, the defendant may nevertheless be entitled to qualified immunity.”

Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987);

Lowth v. Town of Cheektowaga, 82 F.3d 563, 568-69 (2d Cir. 1996).

Under Pearson v. Callahan, this Court first determines whether a constitutional

violation occurred, and then if so, whether Officers Tedesco and Acquino are entitled to

qualified immunity, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

B. First and Second Causes of Action

1. Applicable Standards: § 1983 and Constitutional Right

Violations

To prove the elements of a § 1983 cause of action, Plaintiff must show that “(1) a

person (2) acting under color of state law (3) subjected the plaintiff or caused the plaintiff

to be subjected (4) to the deprivation of a right secured by the Constitution or laws of the

United States,” City of Okla. City v. Tuttle, 471 U.S. 808, 829, 105 S. Ct. 2427, 85 L. Ed.

2d 791 (1985) (Brennan, J., concurring). Here, the first two elements are met without

dispute.

a. Constitutional Rights Asserted

The constitutional rights invoked here arise under the Fourth and Fourteenth

Amendments. The Fourteenth Amendment prohibits the deprivation of life, liberty, or

property without due process of law, U.S. Const. amend. XIV. The Fourth Amendment

provides, in relevant part, that “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated . . . ,” U.S. Const. amend. IV. These rights under the Fourth Amendment are

applicable to municipalities through the Due Process Clause of the Fourteenth

Amendment, see Elkins v. United States, 364 U.S. 206, 213, 80 S. Ct. 1437, 4 L. Ed. 2d

1669 (1960); Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).

The Supreme Court in Brendlin observed:

“A person is seized by the police and thus entitled to challenge the

government’s action under the Fourth Amendment when the officer, ‘“by

means of physical force or show of authority,”’ terminates or restrains his

freedom of movement, Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct.

2382, 115 L.Ed.2d 389 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19, n.16,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), ‘through means intentionally

applied,’ Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378,

103 L.Ed.2d 628 (1989) (emphasis in original).”

Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).

On the use of deadly force, “it is not objectively reasonable for an officer to use

deadly force to apprehend a suspect unless the officer has probable cause to believe that

the suspect poses a significant threat of death or serious physical injury to the officer or

others,” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (citing

Tennessee v. Garner, 471 U.S. 1, 3, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)); Illinois

v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

b. § 1981 Liability

Plaintiff alleges in her Second Cause of Action that Defendants violated 42 U.S.C.

§ 1981, which provides that

“[a]ll persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.”

42 U.S.C. § 1981. This act prohibits intentional racial discrimination, Brown v. City of

Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). “Race” in this statute is defined to include

ethnicity, Saint Francis Coll. v. Al-Kazraji, 481 U.S. 604, 609-13, 107 S. Ct. 2022, 95 L.

Ed. 2d 582 (1987). To establish a claim under § 1981, a plaintiff must come forth with

evidence supporting the following elements: “(1) plaintiffs are members of a racial

minority; (2) defendants’ intent to discriminate on the basis of race; and (3) discrimination

concerning one of the statute’s enumerated activities,” Johnson v. State of N.Y., 669 F.

Supp. 2d 444, 449 (S.D.N.Y. 2009) (quoting Brown, supra, 221 F.3d at 339).

To succeed on a claim for discriminatory practices of the police department,

Plaintiff must prove “circumstances giving rise to a plausible inference of racially

discriminatory intent,” Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994); Haynes v.

Acquino, No. 10CV355, 2010 WL 11546024, at *4 (W.D.N.Y. July 7, 2010). She must

establish that Hernandez-Rossy was stopped because of his race, Yusuf, supra, 35 F.3d

at 713; Haynes, supra, 2010 WL 11546024, at *4.

The Second Circuit, however, joins nine other federal circuit courts in concluding

that § 1981 does not provide a separate private right of action against state actors, Duplan

v. City of N.Y., 888 F.3d 612, 620-21 (2d Cir. 2018). That action is encompassed by §

1983, Blythe v. City of N.Y., 963 F. Supp. 2d 158, 171 (E.D.N.Y. 2013) (citing cases).

Plaintiff must prove that the § 1981 violation was performed pursuant to a municipal policy

or custom as stated in a § 1983 claim, Duplan, supra, 888 F.3d at 621; Patterson v. Cnty.

of Oneida, 309 F.3d 206, 226 (2d Cir. 2004); see Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 733-36, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989).

c. Plaintiff Lacks an Eighth Amendment Claim

Plaintiff alleges violations of the Eighth Amendment in her First and Second

Causes of Action. But that amendment does not apply here since it is undisputed that

Hernandez-Rossy was not convicted or sentenced when his rights were allegedly

infringed, City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L.

Ed. 2d 605 (1983); see Graham v. Connor, 490 U.S. 386, 398-99, 109 S. Ct. 1865, 104

L. Ed. 2d 443 (1989) (Eighth Amendment standard applies “only after the State has

complied with the constitutional guarantees traditionally associated with criminal

prosecutions”) (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S. Ct. 104, 51 L.

Ed. 2d 711 (1977)). The rights of suspects who are yet to be convicted are protected by

the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment,

Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).

Therefore, the City Defendants’ motion for summary judgment is granted as to

Plaintiff’s claims under the Eighth Amendment in her First and Second Causes of Action.

Plaintiff’s opposing motion for summary judgment upholding her Eighth Amendment

claims is denied.

2. Civil Rights Violations

Plaintiff asserts that the City Defendants applied excessive force against

Hernandez-Rossy. She also argues that Officers Tedesco and Acquino are not entitled

to qualified immunity. In response, the City Defendants deny that any constitutional

violations occurred. Alternatively, they argue that disputed issues of material fact

preclude granting summary judgment in Plaintiff’s favor. And they further counter that the

officers’ actions were lawful, justified, and reasonable, with Officer Tedesco’s use of

deadly force being objectively reasonable under the circumstances and justified under

New York Penal Law. The City Defendants further argue that Plaintiff does not have a

viable Equal Protection claim under 42 U.S.C. § 1981. Finally, the City Defendants

alternatively claim qualified immunity for Officers Tedesco and Acquino.

Plaintiff replies that Officers Acquino’s and Tedesco’s statements about the

incident are false, and she argues that Defendants’ excessive use of force was

unreasonable as a matter of law under Second Circuit precedent, see O’Bert, supra, 331

F.3d at 36; see also Garner, supra, 471 U.S. at 1.

The City Defendants retort that by not addressing all arguments made, Plaintiff

concedes or waives her arguments and objections. The City Defendants thus view the

following claims as withdrawn: use of excessive force by Officers Tedesco and Acquino;

equal protection claims under § 1981; Monell claims against the City for violation of

Hernandez-Rossy’s Fourth and Fourteenth Amendment rights and failure to train,

supervise, and discipline these officers; wrongful death claim against the City for failing

to render medical care (alleged in the Fifth Cause of Action); and the negligence claims

against them.

a. Issues of Fact Preclude Summary Judgment

on the First Cause of Action

Review of the alleged facts shows two materially different versions of events. The

City Defendants claim that the officers had probable cause to stop Hernandez-Rossy, but

he repeatedly refused to stop when commanded. They also claim that Hernandez-Rossy

reached for and fired a handgun at Officer Acquino and then started to drive off with the

officer hanging from the open driver-side door. The City Defendants further contend that

Hernandez-Rossy continued to resist arrest and refuse commands and tried to flee. The

City Defendants maintain that these actions justified the use of deadly force.

Plaintiff counters that the officers violated Buffalo Police Department regulations in

commencing and conducting the traffic stop and in pursuing Hernandez-Rossy, and that

Hernandez-Rossy did not possess drugs or a weapon to provide probable cause for the

stop.

Both sides agree that Officer Acquino’s ear was injured when he was leaning into

Hernandez-Rossy’s car but disagree about the cause of the injury. If Hernandez-Rossy

shot Officer Acquino—or Officer Tedesco reasonably believed that Hernandez-Rossy did

so—a reasonable jury could conclude that Officer Tedesco had a reasonable basis to

pursue and use force upon Hernandez-Rossy as he attempted to flee. Such a finding

could result in the denial of Plaintiff’s civil rights claims and the extension of qualified

immunity to the officers. The factual disagreement as to the cause for Officer Acquino’s

injury, however, precludes entry of judgment as a matter of law for either side.

As shown by these competing versions of the facts, there remain numerous

disputed issues of material fact. Some of these issues, such as whether the officers had

probable cause to stop Hernandez-Rossy and the cause of the injuries to Officer Acquino

(and ultimately the justification for Officer Tedesco’s use of lethal force), are material and

preclude summary judgment.

These issues cannot be resolved on summary judgment for either party. The City

Defendants’ motion for summary judgment on Plaintiff’s remaining claims alleged in her

First Cause of Action is therefore denied. Plaintiff’s competing motion for summary

judgment is also denied.

b. Issues of Fact Preclude Granting Qualified

Immunity

The City Defendants also invoke qualified immunity for Officers Acquino and

Tedesco. But whether it was objectively reasonable for the officers to believe that their

actions did not violate Hernandez-Rossy’s constitutional rights is also fact dependent, as

the City Defendants concede (City Defs. Response, ¶ 19). And as indicated above, this

Court disagrees with the City Defendants’ contention that the facts are undisputed and

well documented (cf. Memorandum of Law in Support of the City Defendants’ Motion

(“City Defs. Memo”), Docket No. 107-1, p. 19). Consequently, the disputed issues of

material fact preclude extending qualified immunity to Officers Acquino or Tedesco at this

stage. Therefore, the City Defendants’ motion for summary judgment seeking qualified

immunity is denied.

c. The City Defendants are Entitled to

Summary Judgment on Plaintiff’s Second

Cause of Action

For her § 1981 claim in the Second Cause of Action, Plaintiff alleges that the City

Defendants racially profiled Hernandez-Rossy, approaching him because he was of

Hispanic origin. Plaintiff, however, did not initially focus on this Cause of Action in her

motion or in response to the City Defendants’ motion.

Examining the elements of a § 1981 claim, see Johnson, supra, 669 F. Supp. 2d

at 449, Plaintiff alleges that Jose Hernandez-Rossy was Hispanic, and therefore a

member of a racial minority. She further alleges that Officers Tedesco and Acquino

discriminated against Hernandez-Rossy by depriving him of the full and equal benefit of

the laws, and subjected him to unlike punishment, pains, and penalties different from

white persons.

At issue is the second element of Plaintiff’s § 1981 claim, the intention of these

officers to discriminate against Hernandez-Rossy based on his ethnicity. Plaintiff’s

pleading and her initial moving (and opposing) papers do not allege Defendants’ intention

or identify any evidence of circumstances giving rise to an inference of racially

discriminatory intent (cf. Memorandum of Law in Reply (“City Defs. Reply Memo.”),

Docket No. 131, at p. 2). Plaintiff does not set forth any evidence that the officers knew

Hernandez-Rossy’s ethnicity when they first observed him driving. Plaintiff also presents

no evidence concerning the demographics of where Hernandez-Rossy was driving to

presume his national origin. Absent an additional submission, it was not clear whether

Plaintiff abandoned this claim (cf. id.).

Plaintiff tried to cure this deficiency by seeking leave to add evidence from the

Black Love Resists action that purports to show that Officer Tedesco (among four other

officers) disproportionately issued traffic tickets to African Americans and Latin persons

(see Docket Nos. 138, 136). But this Court denied Plaintiff leave to include this evidence

(Docket No. 141).

Absent the belated and excluded evidence of alleged racially-biased ticket-issuing

by Officer Tedesco, Plaintiff has failed to set forth sufficient evidence to support her

Second Cause of Action. For example, Plaintiff has not presented any evidence of the

officers’ intention to discriminate against Hernandez-Rossy based on his ethnicity.

Consequently, the City Defendants’ motion for summary judgment is granted, and

Plaintiff’s motion is denied.

C. Third and Fourth Causes of Action

Next, this Court considers together the vicarious liability claims asserted in the

Third and Fourth Causes of Action against the City and former Commissioner Derenda.

The Third Cause of Action alleges that the City is liable for Officers Acquino’s and

Tedesco’s actions because they arose from the City’s (unspecified) unconstitutional

customs, usages, policies, and practices (Compl. ¶ 33). The Fourth Cause of Action

alleges that Commissioner Derenda failed to remedy the wrongs committed by Officers

Tedesco and Acquino (id. ¶ 37).

1. Applicable Standards: Supervisory Liability

“A municipality may not be held liable under § 1983 solely because it employs a

tortfeasor,” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403, 117

S. Ct. 1382, 137 L. Ed. 2d 626 (1997). The text of 42 U.S.C. § 1983 imposes liability only

upon a person who deprives a federal right, id. The legislative history of § 1983 reveals

that Congress intended to limit municipal liability due to concern about imposing liability

on a municipality for the conduct of others, id. (quoting Pembaur v. Cincinnati, 475 U.S.

469, 479, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986), in turn citing, Monell, supra, 436 U.S.

at 665-83)).

“To hold a city liable under § 1983 for unconstitutional actions of its employees, a

plaintiff is required to plead and prove three elements: (1) an official policy or custom that

(2) causes the plaintiff to be subjected to (3) a denial of a constitutional right,” Batista v.

Rodriquez, 702 F.2d 393, 397 (2d Cir. 1983); see Tuttle, supra, 471 U.S. at 824; Monell,

supra, 436 U.S. at 694 (plaintiff must identify the municipal policy or custom that caused

the injury). A plaintiff needs to show that the policy or custom proximately caused the

deprivation, Owen v. City of Indep., 445 U.S. 622, 633, 100 S. Ct. 1398, 63 L. Ed. 2d 673

(1980). That policy or custom must be “the moving force” behind the violation of federal

rights, City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d

412 (1989). To be that “moving force,” a municipality’s failure to train employees must

“evidence a ‘deliberate indifference’ to the rights of its inhabitants” to have it found that

“such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable

under § 1983,” id. at 389; see id. at 392 (liability against a municipality only where the

city’s failure to train reflects deliberate indifference to the rights of its inhabitants). A

plaintiff also needs to demonstrate a causal nexus between the supervisor’s conduct and

the injuries alleged, Lewis v. Meloni, 949 F. Supp. 158, 163 (W.D.N.Y. 1996) (quoting

Wash. Square Post 1212 v. City of N.Y., 720 F. Supp. 337, 346 (S.D.N.Y. 1989), rev’d in

part, 907 F.2d 1288 (2d Cir. 1990)).

For supervisory liability under § 1983, the official either “must have been personally

involved in a constitutional deprivation,” Bryant v. Ciminelli, 267 F. Supp. 3d 467, 475

(W.D.N.Y. 2017), or otherwise personally responsible for the deprivation, Lewis, supra,

949 F. Supp. at 163 (alleged entrapment of plaintiff showed lack of probable cause

against plaintiff). Absent such personal involvement by a supervisor, however, “liability

in § 1983 actions may be imposed only where there is some culpable action or inaction

by the supervisor in the training, supervision or control of his subordinates,” id. The

Second Circuit further holds that “supervisory liability may be imposed when an official

has actual or constructive notice of unconstitutional practices and demonstrates gross

negligence or deliberate indifference by failing to act,” Williams v. Smith, 781 F.2d 319,

323-24 (2d Cir. 1986).

Supervisory liability depends “on a showing of some personal responsibility, and

cannot rest on respondeat superior,” id. at 323. Conclusory allegations of inadequate

training or supervision also are insufficient to state this claim, Bryant, supra, 267 F. Supp.

3d at 475. A supervisor who learns of a violation but fails to remedy the wrong is grossly

negligent in managing subordinates who caused the unlawful condition, Williams, supra,

781 F.2d at 323-24.

2. Defendants are Entitled to Summary Judgment on Plaintiff’s

Third Cause of Action

Plaintiff here claims that the City is liable under Monell as the officers’ employer.

She argues that Officers Acquino and Tedesco violated department policies in conducting

a vehicle pursuit and traffic stop. She further maintains that these officers engaged in a

pattern of misconduct that the City was deliberately indifferent to. Plaintiff combines

Officer Acquino’s disciplinary history and the suppression of a criminal defendant’s

statement in United States v. Arthur Jordan, No. 16-CR-93, as proof of Officer Acquino

engaging in the “same pattern of unconstitutional behavior” and attempt to cover up

violations of civil rights and excessive use of force that occurred with Hernandez-Rossy.

She maintains that the City had notice of this pattern of misconduct from other court cases

and Internal Affairs Division complaints against these officers.

The City Defendants deny that the officers were engaged in a “pursuit” as

regulated by departmental policy; instead, they merely followed Hernandez-Rossy.

Defendant City specifically denies any supervisory liability over these officers. The City

Defendants further argue that Plaintiff did not raise these arguments in opposition to the

City Defendants‘ motion, hence waiving that cause of action. This waiver argument,

however, disregards Plaintiff’s affirmative arguments in support of her motion asserting

supervisory liability.

First, there are issues of fact concerning whether Hernandez-Rossy suffered any

deprivation of his rights. But even assuming that Plaintiff could establish the violation of

an official policy or custom, there is no evidence from which a reasonable jury could

conclude that these policies or customs were the moving force that caused Hernandez-

Rossy to be denied his constitutional rights. Plaintiff has come forth with no evidence to

support her conclusory assertions that the officers violated departmental policy and that

those violations somehow deprived Hernandez-Rossy of his rights.

The City Defendants’ motion for summary judgment on the Third Cause of Action

is granted, while Plaintiff’s motion for summary judgment in her favor is denied.

3. Defendants are Entitled to Summary Judgment on Plaintiff’s

Fourth Cause of Action

To succeed on her Fourth Cause of Action, Plaintiff must prove either

Commissioner Derenda’s personal involvement in depriving Hernandez-Rossy’s rights or

his responsibility for those deprivations. As to the former, Plaintiff has not set forth

sufficient evidence that Commissioner Derenda had any personal involvement in the

alleged constitutional violations by Officers Tedesco or Acquino. Plaintiff’s contention

rests solely upon the Commissioner’s knowledge of past disciplinary complaints against

Officers Acquino and Tedesco for allegedly similar infractions purportedly caused by the

failure to train or sufficiently supervise these officers on May 7, 2017. She cites instances

from the officers’ disciplinary records involving how they conducted traffic stops and used

force as proof of the City’s (and presumably Commissioner Derenda’s) prior knowledge

(Docket No. 129, Pl. Exs. 76 (Acquino IAD files), 77 (Tedesco IAD files)).

But these disciplinary complaints do not establish notice. First, some of them post-

date Hernandez-Rossy’s incident and therefore could not inform Defendants of the need

to enhance officer training. As such, disciplinary complaints made after May 2017 and

after Hernandez-Rossy’s contact with these officers cannot constitute notice to

Commissioner Derenda or the City that their training or supervision required

improvement. Prior notice is required to be actionable. Second, several other disciplinary

incidents are unsubstantiated and do not provide notice to Commissioner Derenda for

required training. Finally, the remaining incidents are too unlike the situation involving

Hernandez-Rossy to provide reasonable notice.

As for Officer Tedesco, excluding the post-event, unsubstantiated, and disparate

complaints, just two disciplinary complaints remain that were sustained and for which he

was sanctioned. But again, these complaints differ from the interaction with Hernandez-

Rossy. One complaint arises from a 2015 incident where Officer Tedesco pulled the

complainant from her car and took her cellphone (Docket No. 129, Pl. Ex. 77, EC2015-

038). That complaint resulted in a reprimand. The other complaint involved a 2016

incident where Officer Tedesco took an inspection sticker from the complainant’s vehicle

(id., EC2016-037). That complaint was sustained with a reprimand and suspension.

Neither incident involved a vehicular pursuit and traffic stop or the use of lethal force.

These two instances are thus materially distinguishable and cannot reasonably be found

to afford prior notice to Commissioner Derenda to establish a supervisory-liability claim

for Officer Tedesco’s subsequent actions in 2017.

Plaintiff also relies on Officer Acquino’s testimony in Jordan as evidence that

Officer Acquino committed similar misconduct and engaged in a similar attempt to cover

it up. But even a cursory comparison of the arrest incident in Jordan with the facts here

show that they are materially distinct. Jordan did not involve a traffic stop, probable

cause, or the use of lethal force. And the probable cause determination in Jordan was

made by officers other than Acquino. Consequently, the suppression decisions in Jordan

fail to afford notice to the Commissioner or the City regarding necessary supervision of

Officer Acquino.

Furthermore, Jordan also involved the testimony and action of Officer Michael

Acquino, Defendant Joseph Acquino’s brother, United States v. Jordan, No. 16-CR-93,

Report & Recommendation, Docket No. 32, at pp. 5-6. Officer Michael Acquino testified

at the suppression hearing before Magistrate Judge Schroeder, id. at 2, 5, 7, 8.

Magistrate Judge Schroeder did not indicate whether Joseph Acquino testified, and

Magistrate Judge Schroeder made no finding about the actions or credibility of Defendant

Officer Joseph Acquino. The decisions in Jordan therefore do not reveal a pattern of

misconduct by Officer Joseph Acquino.

What is left then is only Plaintiff’s bare conclusory allegation that the lack of training

of Officers Acquino and Tedesco led to Hernandez-Rossy’s injuries, see Lewis, supra,

949 F. Supp. at 164. Plaintiff does not allege deficiencies in the Buffalo Police

Department training to show it was inadequate, cf. City of Canton, supra, 489 U.S. at 390,

or that insufficient training led to the traffic stop and Hernandez-Rossy’s demise. Plaintiff

has not come forth with evidence that the failure to train either officer constitutes

deliberate indifference to the rights of City residents, including Hernandez-Rossy, id. at

388-89, 392. Plaintiff is silent as to the training program Officers Acquino and Tedesco

undertook or should have taken to avoid violation of Hernandez-Rossy’s rights.

Resolving the City Defendants’ liability, “the focus must be on adequacy of the

training program in relation to the tasks the particular officers must perform. That a

particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on

the city, for the officer’s shortcomings may have resulted from factors other than a faulty

training program,” id. at 390-91. Allowing a failure-to-train claim to go forward on a lesser

standard “would result in de facto respondeat superior liability on municipalities” and open

municipalities to “unprecedented liability under § 1983,” id. at 391-92. By Plaintiff reciting

the officers’ disciplinary histories, she seeks to apply this lesser standard of what “the city

‘could have done’ to prevent the unfortunate incident,” id. at 392 (quoting Tuttle, supra,

471 U.S. at 823).

Plaintiff merely identifies a pattern of purported prior misconduct by these officers

that allegedly required their additional training and supervision before May 2017 as

support for the City’s deliberate indifference. But Plaintiff does not show the substance

of Buffalo Police Department training or deficiencies therein. The mere allegation of

failure to train, however, is insufficient to establish a municipal policy or custom,

Neighborhood v. Covert, 68 F.3d 1508, 1512 (2d Cir. 1995), cert. denied, 516 U.S. 1174,

116 S. Ct. 1267, 134 L. Ed. 2d 214 (1996).

As was found in Lewis, supra, 949 F. Supp. at 163, Plaintiff has not produced

evidence “from which a reasonable jury could find or infer an unconstitutional municipal

policy or custom based upon lack of training or supervision,” id. Plaintiff further has not

established Commissioner Derenda’s responsibility for Officers Acquino and Tedesco

through limited disciplinary records to show their proclivity to violate constitutional rights

similar to those at issue here. The City Defendants’ motion for summary judgment on the

Fourth Cause of Action is thus granted. Plaintiff’s summary judgment motion on this

cause of action is denied.

D. Fifth, Sixth, and Seventh Causes of Action

1. Exercise of Supplemental Jurisdiction over Common Law

Claims

Given the above disposition, the only federal claims remaining are Plaintiff’s Fourth

and Fourteenth Amendment claims in her First Cause of Action. Turning to the Fifth and

Sixth Causes of Action, they expressly allege violations of New York law. And this Court

construes Plaintiff’s Seventh Cause of Action as alleging a state-law spoliation claim since

no federal due process allegation is made. Jurisdiction over the state-law claims exists

only if this Court exercises supplemental jurisdiction. The parties, however, have not

expressly addressed whether it should do so.

Subject-matter jurisdiction over state-law claims may be raised by the parties or by

the court sua sponte, Lyndonville Sav. Bank & Tr. v. Lussier, 211 F.3d 697, 700-01 (2d

Cir. 2000). This Court must examine its jurisdiction at any point in the proceeding,

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S. Ct. 614, 98 L. Ed. 2d 720

(1988) (the district court has “to consider throughout the litigation whether to exercise its

jurisdiction over the case”).

Under 28 U.S.C. § 1367, this Court may exercise supplemental jurisdiction over

Plaintiff’s state-law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d 689, 692

(S.D.N.Y. 1998), or may decline to hear them, 13D Charles A. Wright, Arthur R. Miller,

Edward H. Cooper, and Richard D. Freer, Federal Practice and Procedure § 3567.3, at

397 (Jurisd. rev. 3rd ed. 2008). This Court “may decline to exercise supplemental

jurisdiction over a claim” if all original jurisdiction claims were dismissed, 28 U.S.C. §

1367(c)(3); see 13D Federal Practice and Procedure, supra, § 3567.3, at 400, 428-29.

Plaintiff’s state-law claims arise from the same nucleus of facts as the remaining

federal claims—the treatment and death of Jose Hernandez-Rossy at the hands of

Officers Tedesco and Acquino. For example, the Sixth Cause of Action alleges

negligence for the same conduct alleged as constitutional violations in earlier causes of

action. Since some original-jurisdiction claims remain for adjudication, this Court will

exercise jurisdiction over the state-law claims.

2. Legal Standards

a. Wrongful Death

Under New York law, the elements of a wrongful death action are a death of a

human being; caused by the wrongful act, negligence, or default of the defendant; giving

rise to a cause of action that could have been maintained, at the moment of death, by

decedent if death had not ensued; survival by distributees who have suffered pecuniary

loss by reason of the death; and appointment of a personal representative of decedent

(here, Plaintiff), N.Y. Est. Powers & Trusts Law § 5-4.1; e.g., Prink v. Rockefeller Ctr.,

Inc., 48 N.Y.2d 309, 315, 422 N.Y.S.2d 911, 915 (1979).

b. Excessive Force

Excessive use of force is intentional conduct, not negligence, as a matter of New

York tort law, Bogart v. City of N.Y., No. 13CV1017, 2016 WL 4939075, at *13 (S.D.N.Y.

Sept. 6, 2016) (citing federal cases and Mazzaferro v. Albany Motel Enters., 127 A.D.2d

374, 376, 515 N.Y.S.2d 631, 632-33 (3d Dep’t 1987) (the actor is liable for assault and

not negligence)).

c. Notice of Claim Requirement

New York law requires service of a Notice of Claim for tort suits against its

municipalities and municipal employees, Gen. Mun. Law. §§ 50-i(1), 50-e(1); see

McNaughton v. Cnty. of Chautauqua, No. 15CV233, 2017 WL 451817, at *3 (W.D.N.Y.

Oct. 10, 2017). The Notice is a condition precedent to maintain an action against the

municipal parties, State v. Waverly Cent. Sch. Dist., 28 A.D.2d 628, 628, 280 N.Y.S.2d

505, 506 (3d Dep’t 1967). This applies to state-law claims heard in federal court, Felder

v. Casey, 487 U.S. 131, 151, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988); Hardy v. N.Y.C.

Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999); Jewell v. City of N.Y., No. 94

Civ. 5454 (DLC), 1995 WL 86432, at *1 (S.D.N.Y. Mar. 1, 1995) (applies “with full force”

where state tort claims are appended as ancillary claims in federal civil rights action).

The Notice-of-Claim requirements “are construed strictly by New York state courts,

and failure to abide by their terms mandates dismissal of the action,” Lewis v. Livingston

Cnty. Ctr. for Nursing and Rehab., 30 F. Supp. 3d 196, 208 (W.D.N.Y. 2014) (quotation

and citation omitted), including the specific claims alleged, see McNaughton, supra, 2017

WL 4518173, at *3.

Federal claims against New York municipalities and employees brought in federal

court, however, do not require a Notice of Claim, Felder, supra, 487 U.S. at 151, 140,

141, because the Notice-of-Claim requirement is inconsistent with congressional intent

for federal civil rights legislation. Plaintiff can also assert tort claims against non-

governmental entity AMR without serving it with a Notice of Claim, see Clare-Hollo v.

Finger Lakes Amb. EMS, Inc., 99 A.D.3d 1199, 1200, 952 N.Y.S.2d 350, 352 (4th Dep’t

2012).

The Notice of Claim furnishes municipal parties with enough information to allow

them to investigate the claims and (if possible) settle them before the plaintiff sues, see

Waverly Cent. Sch. Dist., supra, 28 A.D.2d at 628-29, 280 N.Y.S.2d at 507. “Any theory

of liability omitted from the notice of claim may not be included in a subsequent lawsuit.”

See DeMorcy v. City of N.Y., 137 A.D.2d 650, 650–51, 524 N.Y.S.2d 742, 743 (2d Dep't

1988),” Jewell v. City of N.Y., supra, 1995 WL 86432, at *1.

In McNaughton, the Chautauqua County defendants argued that plaintiff David

McNaughton’s failure-to-diagnose medical-malpractice and negligence claims should be

dismissed because McNaughton’s Notice of Claim alleged only failure to properly

maintain, handle, and/or administer injectable medications, but did not state other

theories of medical malpractice or negligence (such as failure to diagnose), 2017 WL

4518173, at *3. Then-Chief Judge Geraci agreed, holding that the Notice-of-Claim

requirement “applies to theories of liability made within the scope of those state law

claims,” id., citing Jewell, supra, 1995 WL 86432, at *1. Because McNaughton’s original

and amended Notices of Claim failed to mention other theories of malpractice or

negligence and the time to amend had run, Judge Geraci found that “McNaughton’s state

law claims against those defendants [were] limited to liability arising out of the injection of

medication,” the claim alleged in McNaughton’s Notices of Claim, McNaughton, supra,

2017 WL 4518173, at *3.

The burden of demonstrating compliance with the Notice-of-Claim requirement is

on the plaintiff, Henry v. Brown, 406 F. Supp. 2d 211, 215 (E.D.N.Y. 2016).

3. Fifth Cause of Action

The City Defendants argue that Plaintiff did not allege every claim pursued in this

case in her Notice of Claim. For instance, Plaintiff did not initially allege that the City

Defendants negligently rendered first aid or committed spoliation. The City Defendants

therefore urge that these claims should be dismissed for violating General Municipal Law

§ 50-e. Plaintiff responds that her Notice of Claim sufficiently alleged her claims.

In her Notice of Claim, Plaintiff briefly described the nature of her claims as follows:

“Wrongful Death, Negligence, Negligent training, hiring and supervision,

Civil Rights Violations, Police Brutality, Excessive force, Assault and

Battery, Conscious Pain and Suffering, Loss of Services, Support and

Consortium, and past and future pecuniary consequential damages, and

exemplar and punitive damages for outrageous and wanton conduct

thereby causing injury and death, all in such sum as the trier [of] fact should

determine, and in excess of Ten Million Dollars,”

(City Defs. Atty. Decl., Ex. CC; City Defs. Statement, ¶¶ 57-59).

Notably, this description does not include claims involving spoliation of evidence

or the provision of first aid. Plaintiff thus failed to comply with the Notice-of-Claim

requirement by now alleging injury and wrongful death based on the manner of delivery

of first aid to Hernandez-Rossy (as alleged in the Fifth Cause of Action) and spoliation of

evidence (the Seventh Cause of Action).

The Notice of Claim does not provide adequate notice for the municipal defendants

to investigate Plaintiff’s claims concerning the City’s deficiencies in administering first aid

to justify the Fifth Cause of Action, see Waverly Cent. Sch. Dist., supra, 28 A.D.2d at 628-

29, 280 N.Y.S.2d at 507. Furthermore, Plaintiff has not made a timely amendment to her

Notice to correct these omissions, see N.Y. Gen. Mun. Law §§ 50-e(1)(a) (timely Notice

must be served within 90 days), 50-e(5), 50-i(1) (extension of time to serve a Notice of

Claim within the time for commencement of an action, that is one year and ninety days

after the incident). Any amendment now would be untimely. Given Plaintiff’s

noncompliance with General Municipal Law §§ 50-e and 50-I, the Fifth Cause of Action

must be dismissed as to the City Defendants.

4. Sixth Cause of Action

As for the Sixth Cause of Action alleging common law negligence, Plaintiff

expressly stated negligence in her Notice of Claim (City Defs. Statement, ¶ 59; City Defs.

Att. Decl., Ex. CC). The City and the officers are thus on notice of Plaintiff’s Sixth Cause

of Acton, preserving this claim for consideration.

A negligence claim “cannot coexist with claims for intentional torts such as those

asserted here, assault, battery, and intentional infliction of emotional distress,” Kirk v.

Metro. Transp. Auth., No. 99 CIV 3787, 2001 WL 25865, at *1, 11 (S.D.N.Y. Mar. 14,

2001) (citations omitted). “New York has adopted the prevailing modern view that, once

intentional offensive contact has been established, the actor is liable for assault and not

negligence, even when the physical injuries may have been inflicted inadvertently,”

Salimbene v. Merchs. Mut. Ins. Co., 217 A.D.2d 991, 994, 629 N.Y.S.2d 913, 915-16 (4th

Dep’t 1995) (citations omitted); Smith v. Cnty. of Erie, 295 A.D.2d 1010, 1010, 743

N.Y.S.2d 649, 650 (4th Dep’t 2002) (alleged excessive force by deputies). Plaintiff cannot

allege negligence, excessive force, and assault from the same conduct, Naccarato v.

Scarselli, 124 F. Supp. 2d 36, 45 (N.D.N.Y. 2000); LaLonde v. Bates, 166 F. Supp. 2d

713, 720 (N.D.N.Y. 2001). “When a plaintiff asserts excessive force and assault claims

which are premised upon a defendant’s allegedly intentional conduct, a negligence claim

with respect to the same conduct will not lie,” Warr v. Liberatore, 270 F. Sup. 3d 637, 655

(W.D.N.Y. 2017) (quoting Dineen ex rel. Dineen v. Stramka, 228 F. Supp. 2d 447, 454

(S.D.N.Y. 2002)).

The City Defendants raise two objections to this claim. First, they argue that

Plaintiff has not demonstrated a negligence claim because she claims intentional actions

such as use of excessive force that cannot constitute negligence as a matter of law,

Smith, supra, 295 A.D.2d at 1010, 743 N.Y.S.2d at 650. Second, the City Defendants

contend that Plaintiff abandoned this claim by not arguing it in these motions. Plaintiff

does not distinguish Defendants’ negligence from their allegedly intentional conduct. She

also does not address the City Defendants’ abandonment contention.

Plaintiff has not addressed the difference between intentional conduct and

negligent conduct. She argues that the officers violated Hernandez-Rossy’s

constitutional rights by using excessive force, but this alleges intentional conduct akin to

assault, e.g., LaLonde, supra, 166 F. Supp. 2d at 719. This intentional conduct cannot

also be negligent.

Plaintiff’s failure to defend her claim either in her motion or in opposition to the City

Defendants’ motion also shows her abandonment of this cause of action, Gustavia Home,

LLC v. Hoyer, 362 F. Supp. 3d 71, 76 (E.D.N.Y. 2019); Hutch Enterp., Inc. v. Cincinnati

Ins. Co., No. 16CV1010, 2019 WL 5783574, at *15 (W.D.N.Y. Aug. 12, 2019), report and

recommendation adopted, Docket No. 105 (W.D.N.Y. Sept. 18, 2019).

As such, the City Defendants’ motion for summary judgment on the common law

Sixth Cause of Action is granted, and Plaintiff’s opposing motion is denied.

5. Seventh Cause of Action

The focus of Plaintiff’s summary judgment motion is her spoliation claim, which, as

indicated above, was not included in her Notice of Claim. Nonetheless, Plaintiff’s

spoliation claim could possibly be viewed as a constitutional due process claim, which

does not require a Notice of Claim, or a common law tort, perhaps as part of the

“outrageous and wanton conduct” asserted in the Notice of Claim. So construed, this

Court now considers whether either claim survives summary judgment.

New York courts do not recognize “an independent tort for spoliation of evidence,”

Tucker v. Kaleida Health, No. 09CV719, 2011 WL 1260117, at *4 (W.D.N.Y. Mar. 31,

2011); Ortega v. City of N.Y., 9 N.Y.3d 69, 83, 845 N.Y.S.2d 773, 781 (2007); see also

Oliver v. City of N.Y., No. 19CV2321, 2022 WL 633873, at *3 (S.D.N.Y. Mar. 4, 2022)

(plaintiff conflated a cause of action for alleged spoliation with discovery sanctions for

spoliation).

There are two reasons that Plaintiff’s spoliation claim fails. First, Plaintiff never

alleged it as a federal due process violation to avoid its omission in her Notice of Claim.

Second, if it could be recognized in the Notice of Claim, New York common law does not

recognize spoliation as a tort.

Although she did not frame her spoliation allegations as a federal due process

claim in the complaint, Plaintiff now contends that her claim is under the Fourteenth

Amendment Due Process Clause, see Smalls v. Collins, 10 F.4th 117, 124 (2d Cir. 2021);

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). But while Plaintiff

specifically invoked § 1983 and Hernandez-Rossy’s federal rights in the first four causes

of action, she did not do so in the Seventh Cause of Action. It must therefore be presumed

that Plaintiff consciously pleaded the Seventh Cause of Action as a common law breach

rather than a constitutional due process violation.

But even if viewed as a substantive due process violation, the Seventh Cause of

Action does not survive summary judgment. Plaintiff alleges that “during and subsequent

to” the traffic stop and shooting, the alteration of evidence “resulted in the fatal shooting

death” of Hernandez-Rossy (Compl., ¶¶ 46, 48). Yet Plaintiff does not present any

evidence that the alleged altered material was forwarded to the prosecution or used in a

proceeding. Fabrication of evidence may state a due process violation, see LeClair v.

Raymond, No. 1:19-cv-0028 (BKS/DJS), 2020 WL 5027278 (N.D.N.Y. Aug. 25, 2020);

Smalls, supra, 10 F.4th at 124, but Plaintiff’s cited cases are distinguishable from

Hernandez-Rossy’s circumstances because Hernandez-Rossy (and Plaintiff) lacked a

proceeding affected by the alleged fabrication of evidence, cf. LeClair, 2020 WL 5027278,

at *2, 4, 9; Smalls, supra, 10 F.4th at 124 (plaintiffs claimed defendants deprived them of

a fair trial by fabricating evidence).

The distinguishing common procedural thread is the existence of proceedings

where the falsified evidence was used. Here, there was no proceeding against

Hernandez-Rossy (or Plaintiff) where the allegedly tampered evidence was introduced.

Plaintiff has thus not shown that the alleged falsified evidence was used against

Hernandez-Rossy. Instead, Plaintiff merely alleges that the officers fabricated evidence

to cover up their respective roles and justify their actions during the traffic stop and

shooting, thereby obstructing the subsequent investigation of the incident and the

administration of justice (Compl., ¶¶ 46, 48). Plaintiff, however, has not set forth any

evidence of a proceeding where Hernandez-Rossy’s rights were implicated or how he

was harmed by alleged falsification during the post-mortem investigation. The

investigations—the internal affairs investigation by the Buffalo Police Department and the

Attorney General’s investigation—did not implicate any of Hernandez-Rossy’s procedural

or substantive rights. Therefore, even if Plaintiff somehow alleged a due process

violation, any such claim fails.

Similarly, even if one accepts that Plaintiff alleged spoliation in her Notice of Claim,

New York does not recognize an independent tort for spoliation of evidence, see Tucker,

supra, 2011 WL 1260117, at *4; Ortega, supra, 9 N.Y.3d at 83, 845 N.Y.S.2d at 781.

Plaintiff’s Seventh Cause of Action thus fails on this basis as well.

Accordingly, the City Defendants’ motion for summary judgment on this cause of

action is granted, while Plaintiff’s opposing motion for summary judgment is denied.

E. Punitive Damages

Finally, with claims remaining against Defendant Officers Tedesco and Acquino,

this Court considers whether Plaintiff can recover punitive damages from them if she

prevails (cf. Compl., at WHEREFORE Cl.). The City Defendants argue that they are

immune from punitive damages. Plaintiff does not address this contention; instead, she

merely mentions that she listed her claim for punitive damages in her Notice of Claim.

Municipalities and their employees are not subject to punitive damages, City of

Newport v. Fact Concerts, 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981);

Ivani Contracting Corp. v. City of N.Y., 103 F.3d 257, 262 (2d Cir. 1997) (municipal

officials sued in their official capacity are immune from punitive damages) (citing Brandon

v. Holt, 469 U.S. 464, 471-73, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985)).

Despite asserting punitive liability in her Notice of Claim, Plaintiff cannot recover

punitive damages from the City Defendants. Municipal employees sued in their official

capacity (such as Officers Tedesco and Acquino) are also not liable for punitive damages.

Furthermore, Plaintiff has not presented any evidence from which it could reasonably be

concluded that the officers’ took the complained-of actions in their personal capacities,

such that punitive damages might be justified. Plaintiff sued the officers in only their

official capacities as acting under the color of law (Compl. ¶ 13), despite captioning the

suit as against the officers “Individually and in their representative capacities” (id., at p.

1). Thus, the City Defendants’ motion for summary judgment on Plaintiff’s claims for

punitive damages is granted.

IV. CONCLUSION

The parties here present two materially different versions of the traffic stop and

subsequent shooting of Jose Hernandez-Rossy. Those factual differences—e.g.,

whether there was probable cause to stop Hernandez-Rossy; whether Hernandez-Rossy

shot Officer Joseph Acquino; whether Officer Justin Tedesco had grounds to use lethal

force—are material and preclude summary judgment on Plaintiff’s Fourth and Fourteenth

Amendment claims asserted in her First Cause of Action or granting qualified immunity

to Officers Tedesco and Acquino. Defendants are entitled to summary judgment or

dismissal of all other claims. Their motion for summary judgment will therefore be granted

in part and denied in part, while Plaintiff’s motion will be denied in its entirety.

V. ORDERS

IT HEREBY IS ORDERED, that the City Defendants’ Motion for Summary

Judgment (Docket No. 107) is GRANTED IN PART and DENIED IN PART, consistent

with this decision.

FURTHER, that Plaintiff’s Motion for Summary Judgment (Docket No. 103) is

DENIED.

FURTHER, that this case is REFERRED for alternative dispute resolution under

Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District

Court for the Western District of New York (“the ADR Plan”).

FURTHER, that the parties shall comply with all relevant requirements of the ADR

Plan, which is available at http://www.nywd.uscourts.gov.

FURTHER, that the parties are directed to re-engage in mediation with Mediator

Michael Menard or another federal-court mediator upon whom they might agree.

FURTHER, that the parties shall conclude their mediation efforts by October 31,

2023.

FURTHER, that the parties must explore consent to proceeding before a

magistrate judge in accordance with 28 U.S.C. § 636 (c). The consent form is available

at https://www.nywd.uscourts.gov/forms-3. The consent process is set forth in Loc. R.

Civ. P. 73. The parties are, of course, free to withhold consent without adverse

substantive consequences. See Fed. R. Civ. P. 73 (b)(2).

FURTHER, that the parties must file a joint written notice concerning the status of

mediation and consent by November 14, 2023.

SO ORDERED.

Dated: September 5, 2023

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge