The opinion
Watkins v City of New York
2024 NY Slip Op 34258(U)
December 3, 2024
Supreme Court, New York County
Docket Number: Index No. 159533/2015
Judge: Hasa A. Kingo
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publication.
INDEX NO. 159533/2015
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 12/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
---------------------------------------------------------------------------------X INDEX NO. 159533/2015
DIANE WATKINS,
MOTION DATE 03/29/2024
Plaintiff,
MOTION SEQ. NO. 005
-v-
CITY OF NEW YORK, YASSER FERNANDEZ, JOHN DOE,
DECISION + ORDER ON
STATE OF NEW YORK
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 005) 85, 86, 87, 88, 89,
90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110
were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, Defendant the City of New York (the “City”) moves
without opposition pursuant to CPLR § 3212 to dismiss the federal law claims interposed by
Plaintiff Diane Watkins (“Plaintiff”), for summary judgment on Plaintiff’s state law malicious
prosecution claim, and to dismiss Plaintiff’s complaint in its entirety as against Police Officers
John Doe 1-3. For the reasons stated herein, the City’s motion is granted.
BACKGROUND
On May 31, 2014, Plaintiff was in Battery Park supervising a school trip to the Statue of
Liberty (NYSCEF Doc No. 86, statement of material facts ¶ 1). As part of the ferry boarding
process, Plaintiff went through a security checkpoint and put her bag on the conveyor belt to be
scanned (id. ¶ 2). Upon going through the security scanner, a United States Park Police Officer
discovered a loaded firearm in the bag and began questioning the students on whether the bag was
theirs (id. ¶ 3). Plaintiff identified the bag and the loaded firearm as hers (id. ¶ 4). Plaintiff advised
the Officer that she had a permit for the firearm and was then brought by the United States Park
Police into a separate room (id. ¶ 5). United States Park Police Officers reviewed Plaintiff’s New
York State gun permit and determined that it did not qualify her to carry the firearm in New York
City (id. ¶ 6). Plaintiff’s gun permit was issued by Monroe County and specifically states that the
license is “[n]ot valid to carry a weapon in New York City unless approved by the Police
Commissioner of that City” (id. ¶ 7). Plaintiff did not have permission from the New York City
Police Commissioner to carry the loaded firearm on the date of the incident (id. ¶ 8).
Plaintiff was eventually transported to the New York City Police Department (“NYPD”)
1st Precinct where United States Park Police processed her arrest paperwork and placed her under
arrest for violating New York Penal Laws § 265.03 Criminal Possession of a Weapon in the Second
Degree (id. ¶¶ 10, 13). The arresting officer, Yasser Fernandez (“Officer Fernandez”), is a United
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States Park Police Officer, who is not employed by the NYPD or the City (id. ¶ 12; NYSCEF Doc
No. 100).1 A second United States Park Police Officer, Chris Kyriakou (“Officer Kyriakou”), acted
as approving supervisor for the arrest (NYSCEF Doc No. 86, statement of material facts ¶ 12;
NYSCEF Doc No. 100). Officer Kyriakou is not employed by the NYPD or the City (NYSCEF
Doc No. 86, statement of material facts ¶ 12; NYSCEF Doc No. 100). NYPD Officer Maxwell
Outsen entered the arrest report and Sergeant Steven Schilling (“Sergeant Schilling”) vouchered
Plaintiff’s firearm (NYSCEF Doc No. 100; NYSCEF Doc No. 98, Schilling deposition tr at 22,
26, 33). Plaintiff was then arraigned on one charge of Criminal Possession of Weapon in the
Second Degree pursuant to Penal Law § 265.03(3) (NYSCEF Doc No. 102, criminal complaint).
The criminal complaint contains a sworn statement by Officer Fernandez (NYSCEF Doc No. 86,
statement of material facts ¶ 14; NYSCEF Doc No. 102). On June 1, 2014, Plaintiff was released
from custody (NYSCEF Doc No. 86, statement of material facts ¶ 16). All charges against Plaintiff
were dismissed on September 19, 2014 (id. ¶ 17).
Plaintiff commenced this action on September 16, 2015, and filed an amended complaint
on January 1, 2016 (NYSCEF Doc Nos. 1-2). The amended complaint interposes causes of action
for (i) violations of Plaintiff’s rights under the Fourth and Fourteenth Amendments to the United
States Constitution and under 42 U.S.C. §§ 1983 and 1988 against Officer Fernandez and John
Doe 1-3, (ii) false arrest or imprisonment against Officer Fernandez and John Doe 1-3, (iii)
malicious prosecution against all defendants; and (iv) Monell (NYSCEF Doc No. 2). Issue was
joined on January 26, 2016 when the City served an answer to the amended complaint (NYSCEF
Doc No. 92).
On February 22, 2016, the State of New York (the “State”) moved to dismiss Plaintiff’s
complaint as against it, which was granted on November 29, 2016 (NYSCEF Doc No. 4; NYSCEF
Doc No. 15, decision and order, J. Kotler). On October 30, 2017, the City moved to dismiss
Plaintiff’s state law claims, with the exception of malicious prosecution, and Plaintiff’s federal
claims, including violations of the Fourth and Fourteenth Amendments, false arrest, false
imprisonment, malicious prosecution, and excessive force, pursuant to 42 U.S.C. § 1983, and
Plaintiff’s Monell claim (NYSCEF Doc No. 17). The City moved, in the alternative, to dismiss
Plaintiff’s complaint for failure to comply with discovery demands (id.). On April 27, 2018, the
portion of the City’s motion addressed to discovery was denied, and Plaintiff was ordered to
provide the requested discovery responses (NYSCEF Doc No. 31, decision and order J. Saunders).
Thereafter, the City moved to reargue the balance of the motion to dismiss the complaint pursuant
to CPLR § 3211(a)(7) (NYSCEF Doc No. 33, notice of motion). By order dated March 26, 2019,
the motion to reargue was granted, and upon reargument, all of Plaintiff’s state law claims, except
the cause of action for malicious prosecution, and Plaintiff’s federal law claims sounding in Monell
were dismissed (NYSCEF Doc No. 48, decision and order J. Saunders).
The parties thereafter engaged in discovery, and Plaintiff was deposed on June 5, 2023
(NYSCEF Do No. 97). On June 22, 2023, Sergeant Schilling testified on behalf of the City
(NYSCEF Doc No. 98). On January 30, 2024, Plaintiff filed the note of issue (NYSCEF Doc No.
84). The City timely filed the instant motion on March 29, 2024 (NYSCEF Doc No. 85). By
1
The United States Park Police functions as a unit of the National Park Service, an agency of the United States Federal
Government, within the Department of the Interior (United States Parks Police,
https://www.nps.gov/subjects/uspp/index.htm [last accessed November 18, 2024]).
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stipulation dated April 19, 2024, the parties adjourned the motion return date to June 3, 2024, with
opposition and reply due May 20, 2024 and June 3, 2024, respectively. (NYSCEF Doc No. 108).
On August 19, 2024, Plaintiff’s Counsel requested additional time to oppose the City’s motion
(NYSCEF Doc No. 109). The court granted the request and adjourned the motion until September
16, 2024, with opposition due September 9, 2024 (NYSCEF Doc No. 110). Despite the extension,
no opposition was filed, and the motion was marked fully submitted on September 16, 2024.
The City argues that Plaintiff’s causes of action brought pursuant to federal law, including
false arrest, false imprisonment, malicious prosecution, and excessive force must be dismissed
because Plaintiff has not named any individual officer employed by the City and the statute of
limitations on these claims has expired (NYSCEF Doc No. 87, Pepe affirmation ¶ 33). The City
also argues that it is entitled to summary judgment on the state law claim of malicious prosecution
because the City did not initiate a criminal proceeding against Plaintiff, there was probable cause
to prosecute Plaintiff for Criminal Possession of a Weapon in the Second Degree, and there was
no malice (id. ¶¶ 35-55). Finally, the City argues that Plaintiff’s complaint should be dismissed in
its entirety against the John Doe Defendants because Plaintiff abandoned the complaint under
CPLR § 3215(c) and the complaint fails to describe any individual defendant such that the
individual would understand that they are the intended defendant (id. ¶¶ 56-58). In support of its
motion, the City submits uncontroverted evidence including pleadings, testimony, Plaintiff’s arrest
and complaint report, Plaintiff’s New York State gun permit, Plaintiff’s criminal court complaint,
Plaintiff’s incarceration record, and a certificate of disposition.
DISCUSSION
Pursuant to CPLR § 3212(b), a motion for summary judgment “shall be granted if, upon
all the papers and proofs submitted, the cause of action or defense shall be established sufficiently
to warrant the [c]ourt as a matter of law in directing judgment in favor of any party” (CPLR §
3212[b]). “The proponent of a motion for summary judgment must demonstrate that there are no
material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Dallas-
Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]). To be a “material issue of fact” it
“must be genuine, bona fide and substantial to require a trial” (Leumi Financial Corp. v Richter,
24 AD2d 855 [1st Dept 1965]). The movant’s burden is “heavy,” and “on a motion for summary
judgment, facts must be viewed in the light most favorable to the non-moving party” (William J.
Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013] [internal
quotation marks and citation omitted]). “A motion for summary judgment should not be granted
where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or
where there are issues of credibility” (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010] [internal
quotation marks and citation omitted]).
At the outset, the City moves to dismiss the complaint as against the John Doe Defendants.
Plaintiff has not moved to amend her summons and complaint to name any of the John Doe
Defendants, and they have not been described in such a way that would fairly apprise them of the
litigation (Markov v Stack’s LLC [Delaware], 161 AD3d 453, 453 [1st Dept 2018]). Aside from
alleging that the John Doe Defendants “were employed as law enforcement officers by Defendant
City” the amended complaint offers no description of the individual(s) involved (NYSCEF Doc
No. 91). As such, the summons and complaint are jurisdictionally defective (Seeler v AMA
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Consulting Engineers, P.C., 190 AD3d 508, 508 [1st Dept 2021] [“As this description failed to
apprise AMADI that it was an intended defendant, the summons and complaint are jurisdictionally
defective”]). Further, while CPLR § 1024 allows a plaintiff to commence an action against an
unknown party, the plaintiff must “designat[e] so much of his name and identity as is known,” and
“demonstrate he or she made a genuine effort to ascertain, in a timely manner, the identity of the
defendants prior to expiration of the statute of limitations” (CPLR § 1024; Opiela v May Indus.
Corp., 10 AD3d 340, 341 [1st Dept 2004]). Here, there is no evidence that Plaintiff made a genuine
effort to ascertain the identity of the defendant(s) prior to the expiration of the statute of limitations,
and the statute of limitations has run on all of her claims against the John Doe Defendants.2
Accordingly, the complaint is dismissed in its entirety as to the John Doe Defendants.
Plaintiff’s remaining causes of action also fail. Under 42 U.S.C. 1983, “[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured” (42 USC §
1983). Individuals may be liable under 42 U.S.C. § 1983 for their own actions, but local
governments are only responsible for “their own illegal acts” (Connick v Thompson, 563 US 51,
60 [2011]; see Fowler v City of New York, 156 AD3d 512, 513 [1st Dept 2017] [“Dismissal was
warranted where plaintiffs [. . .] do not ‘allege particular facts indicating that each of the individual
defendants [were] personally involved in the deprivation of [. . .] plaintiffs’ constitutional rights’]).
Thus, liability may only be imposed on the City for its own alleged violations of a plaintiff’s
constitutional rights by establishing a direct causal link between a municipal policy or custom and
the alleged constitutional deprivation” (Holland v City of Poughkeepsie, 90 AD3d 841, 847 [2d
Dept 2011], citing Canton v Harris, 489 US 378, 385 [1989]; Connick, 563 US 51 [2011]; Monell
v New York City Dept. of Social Servs., 436 US 658, 694 [1978]). Below the policy making level,
a municipality may not be held liable under 42 U.S.C. § 1983 for unconstitutional actions by its
employees on the basis of respondeat superior (DeCarlo v Fry, 141 F3d 56, 61 [2d Cir 1998]).
Plaintiff’s Monell claims were dismissed by Judge Saunders on March 26, 2019 (NYSCEF Doc
No. 48). Thus, without Monell, and with no ability to reach the City through respondeat superior,
Plaintiff’s federal causes of action against the City cannot stand.
Furthermore, Plaintiff’s causes of action for false arrest and malicious prosecution fail
because Plaintiff was not arrested by a City employee and the arrest was supported by probable
cause. To prevail on a cause of action for false arrest or imprisonment, the plaintiff must
demonstrate (1) that the defendant intended to confine the plaintiff, (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement
was not privileged” (De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016]).3 “For purposes of
the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged
if it stems from a lawful arrest supported by probable cause” (De Lourdes Torres, 26 NY3d at 759
[citations omitted]; see Gann v City of New York, 197 AD3d 1035, 1035 [1st Dept 2021][“showing
2
The statute of limitations for Plaintiff’s federal false arrest and false imprisonment claims expired on June 1, 2017,
federal excessive force claim expired on May 31, 2017, federal malicious prosecution claim expired on September 19,
2017, and the state malicious prosecution claim expired on December 13, 2015.
3
In New York, the tort of false arrest is synonymous with that of false imprisonment,” and therefore require the same
analysis (Posr v Doherty, 944 F2d 91, 96 [2d Cir 1991]; see also Crooks v City of New York, 189 AD3d 771, 771 [2d
Dept 2020]). The elements of false arrest are “substantially the same” under state and federal law and require the same
analysis (Crooks, 189 AD3d at 771).
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of probable cause to arrest is a complete defense to an unlawful arrest and imprisonment claim”]).
“Probable cause consists of such facts and circumstances as would lead a reasonably prudent
person in like circumstances to believe plaintiff guilty” (Colon v City of New York, 60 NY2d 78,
82 [1983]; Atwater v City of Lago Vista, 532 US 318, 354 [2001][“If an officer has probable cause
to believe that an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender”]). “Probable cause does not
require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information
sufficient to support a reasonable belief that an offense has been or is being committed by the
suspected individual, and probable cause must be judged under the totality of the circumstances”
(De Lourdes Torres, 26 NY3d at 759).
Like false arrest, the elements and analysis of malicious prosecution are substantially the
same under state and federal law (Crooks, 189 AD3d at 771, supra). To prevail on a cause of action
for malicious prosecution, a plaintiff must establish (1) that a criminal proceeding as initiated
against them, (2) it terminated favorably to plaintiff, (3) lacked probable cause, and (4) was brought
out of actual malice (Morant v City of New York, 95 AD 3d 612 [1st Dept 2012], quoting Colon,
60 NY2d at 82; Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). A showing of probable
cause “is also a complete defense to a claim for malicious prosecution where no subsequent
exculpatory facts are discovered” (Gann v City of New York, 197 AD3d 1035, 1036 [1st Dept
2021]; Flavin v City of New York, 171 AD3d 633, 634 [1st Dept 2019] [“The court properly
dismissed the malicious prosecution claim, as there was probable cause for the arrest and the
absence of evidence that such probable cause dissipated between the arrest and commencement of
criminal proceedings”]).
To the extent that Plaintiff interposes the cause of action for false arrest against the City,
the cause of action is facially deficient because Plaintiff was not arrested by a City employee (see
NYSCEF Doc No. 97, Plaintiff deposition tr at 18; NYSCEF Doc No. 98, Schilling deposition tr
at 19, 22; NYSCEF Doc No. 100). Sergeant Schilling testified that Plaintiff “was brought to the
precinct by Parks police [. . .] [s]he was placed under arrest by Parks Police and she was processed
in the First Precinct” (NYSCEF Doc No. 98, Schilling deposition tr. at 19). The arrest report
proffered by the City lists “Yasser Fernandez” as the arresting officer, “Eric Johansen” of “USPP”
as the assigned officer, and “Chris Kyriakou” as the supervisor approving (NYSCEF Doc No.
100). When Plaintiff arrived at the 1st Precinct, the NYPD processed her firearm and entered the
arrest report (NYSCEF Doc No. 98, Schilling deposition tr. at 22, 26; NYSCEF Doc No. 100).
Officer Fernandez, the only individual named in this action, is a United States Park Police Officer,
who is not employed by the NYPD or the City. The cause of action for false arrest therefore fails
as against the City.
Moreover, the uncontroverted evidence that Plaintiff was in possession of a loaded firearm
in New York City without permission from the New York City Police Commissioner constitutes
probable cause for the arrest by United States Park Police (NYSCEF Doc No. 97, Plaintiff
deposition tr at 15, 16, 17, 28). Under New York law, “[a] person is guilty of criminal possession
of a weapon in the second degree when . . . such person possesses any loaded firearm” (Penal Law
§ 265.03[3]). The United States Park Police observed a firearm in a bag, Plaintiff claimed the bag
and the firearm as hers, and Plaintiff did not obtain prior approval to possess the firearm in New
York City (NYSCEF Doc No. 97, Plaintiff deposition tr at 15, 16, 17, 28; Penal Law § 265.03[3]).
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As such, the arrest and subsequent prosecution were privileged. Plaintiff also has made no showing
of actual malice in connection Plaintiff’s prosecution (see Martinez, 97 NY2d at 84). Therefore,
Plaintiff’s causes of action for false arrest and imprisonment and malicious prosecution are
dismissed.
To the extent that Plaintiff asserts a cause of action for excessive force, the claim fails
because Plaintiff does not allege an unreasonable or excessive use of force. Under both state and
federal law, “claims that law enforcement personnel used excessive force in the course of an arrest
are analyzed under the Fourth Amendment and its standard of objective reasonableness” (Holland,
90 AD3d at 844; see also Lennox v Miller, 968 F3d 150 [2d Cir 2020]). Where an arrest is
supported by probable cause, a de minimis use of force will rarely suffice to state a constitutional
claim (Hudson v McMillian, 503 US 1, 9 [1992]), and a claim of excessive force is correctly
dismissed where it is unsupported by evidence of injury (Davidson v City of New York, 155 AD3d
544, 544 [1st Dept 2017][“The claim of excessive force was correctly dismissed since plaintiff
testified that the handcuffs were too tight, but [] did not testify, or submit other evidence, that he
sustained physical injury as a result”], citing Burgos-Lugo v City of New York, 146 AD3d 660, 662
[1st Dept 2017]). Here, Plaintiff alleges only that she was handcuffed, and makes no factual
allegations to support a finding that the handcuffing was excessive or resulted in injury (NYSCEF
Doc No. 2, amended complaint ¶¶ 15, 23). This is insufficient to support a cause of action for
excessive force (see Burgos-Lugo, 146 AD3d at 662 [“although [plaintiff] complained that his
handcuffs were too tight, there is no evidence of injury”]). Plaintiff’s allegation that she “suffered
a miscarriage due to the stress of the incident and while incarcerated at Riker’s Island” (NYSCEF
Doc No. 2, amended complaint ¶¶ 16, 16, 21) is not sufficient to plead a cause of action for
excessive force where force is not alleged. As such, the excessive force claim is dismissed.
Finally, because the Plaintiff’s complaint fails to adequately plead any cause of action, and
it appears that neither Officer Fernandez nor his employer was served with process, the complaint
is also dismissed as to Officer Fernandez (see CPLR §§ 306-b, 1001[a]).
Accordingly, it is
ORDERED that Defendant the City of New York’s motion for summary judgment is
granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the
Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the complaint is dismissed in its entirety as against Defendant Officer
Yasser Fernandez;
ORDERED that the Clerk is directed to enter judgment accordingly.
12/3/2024
DATE HASA A. KINGO, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
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