The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALEEM MUHAMMAD,
Plaintiff, 23-cv-9908 (JGK)
against - Osinion and Order
THE PORT AUTHORITY OF NEW
YORK AND NEW JERSEY, ET AL.,
Defendants.
John G. Koeltl, District Judge:
The plaintiff, Aleem Muhammad, alleges that he was seriously injured
by a police officer who arrested him for fare evasion at the World Trade Center
Port Authority Trans-Hudson (“PATH”) station. Muhammad brings various
federal-law and state-law claims against the arresting officer, Daniel Lepore;
the Port Authority of New York and New Jersey (the “Port Authority”); and the
Port Authority Police Department (collectively, the “defendants”). The defend-
ants move pursuant to Federal Rule of Civil Procedure 56 for summary
judgment dismissing all of Muhammad’s claims. For the following reasons, the
defendants’ motion is granted in part and denied in part.
I.
The following facts are based on the parties’ Local Civil Rule 56.1 state-
ments and supporting papers and are undisputed unless otherwise noted.
A.
On January 31, 2023, Muhammad was traveling around New York City
with his friend Charles Porter. Defs.’ Local Rule 56.1 Statement (“56.1 State-
ment’) {J 8-10, ECF No. 40. Muhammad and Porter started their journey in
New Jersey and took the PATH train to Manhattan. Id. { 9. They then went to
Brooklyn before traveling to the Fulton Street subway station in Manhattan.
Id. 9-10. From there, they walked to the PATH station at the World Trade
Center. Id. 10. Muhammad and Porter had not paid any of their fares that
day. Id. {J 12.
The PATH station at the World Trade Center has a series of fare-con-
trolled turnstiles. Id. § 14. Muhammad and Porter observed several law-
enforcement officers at the station, including Lepore. Id. { 15. They attempted
to bypass a turnstile without paying but were caught by Lepore. Id. §/ 18. Ac- □
cording to the defendants, Lepore told Muhammad and Porter that they could
not get through without paying the fare and that they should inform him if
they required help. Id. § 19. Muhammad and Porter allegedly ignored Lepore.
Id. Muhammad, by contrast, alleges that he did not ignore Lepore, but instead
asked for permission to enter without paying. Pl.’s Local Rule 56.1 Counter-
statement (“56.1 Counterstatement”) 2, § 19, ECF No. 46. Lepore said
Muhammad and Porter would have to pay. Id.
Muhammad and Porter then walked to the far side of the fare zone and
attempted to walk through an accessible turnstile, again without paying the
fare. 56.1 Statement § 20. The defendants contend that Lepore approached
Muhammad and Porter a second time to ask if they needed help and was again
ignored. Id. § 21. Muhammad instead alleges that he told Lepore that he and
Porter lacked money to pay the fare and that Lepore again told the two that
they would have to pay. 56.1 Counterstatement 2, { 22.
Muhammad and Porter eventually succeeded in entering through the ac-
cessible turnstile without paying the fare by “piggybacking” on someone who
had paid the fare.! 56.1 Statement 23, 25. According to the defendants, Le-
pore approached Muhammad and Porter intending to serve them with a
summons for criminal trespass. Id. 4] 26. Muhammad denies that Lepore made
any attempt to serve a summons. 56.1 Counterstatement 3, { 26. The parties
also dispute what was said when Lepore approached Muhammad and Porter.
Compare 56.1 Statement §[] 28-29, with 56.1 Counterstatement 3, § 29.
The parties’ allegations about what happened next differ sharply.
The defendants contend that Muhammad abruptly moved his hands
when Lepore got closer and that Muhammad attempted to walk away. 56.1
Statement § 30; see also Decl. of Cheryl Alterman Supp. Mot. Summ. J. (“Al-
terman Decl.”), Ex. I “Defs.’ Video”), 0:24-0:29, ECF No. 39-9. When Lepore
tried to grab Muhammad, Muhammad flailed his hands and struck Lepore’s
left forearm. 56.1 Statement {] 31; see also Defs.’ Video, 0:24—0:29. Lepore then
told Muhammad that he was under arrest and attempted to place him in hand-
cuffs, but Muhammad “contorted his body and pulled away.” 56.1 Statement
1 Unless otherwise noted, this Memorandum Opinion and Order omits all inter-
nal alterations, citations, footnotes, and quotation marks in quoted text.
32; see also Alterman Decl., Ex. G (“Lepore Dep. Tr.”), 38:2—39:21, ECF
No. 39-7; Defs.’ Video, 0:24-0:29. According to the defendants, Muhammad
knew he was under arrest but still refused to put his hands behind his back or
to comply with Lepore’s instructions. 56.1 Statement {[ 33; Lepore Dep.
Tr. 43:24—-44:7.
Lepore then used a “double-hook ‘bear hug takedown” to bring Muham-
mad to the ground and place him in handcuffs. Lepore Dep. Tr. 39:7—15; 43:13—
19; Defs.’ Video 0:28-0:34. The double-hook bear hug takedown is a technique
that involves “wrapping the arms around a subject and bringing the person to
the ground without falling on top of them.” 56.1 Counterstatement 4, §] 35. The
defendants argue that Lepore used this technique to “gain[] control by using
only a reasonable amount of force.” Id. {| 36; see also Lepore Dep. Tr. 47:19—20,
80:21-81:4; Defs.’ Video, 0:28—0:34.
Muhammad, by contrast, alleges that Lepore first tried to grab him with-
out stating that he was under arrest. 56.1 Counterstatement 3, § 27; see also
Alterman Decl., Ex. F “Muhammad Dep. Tr.”), 99:1-16, ECF No. 39-6. Mu-
hammad denies having waved his arms at Lepore and instead contends that
he raised his hands to communicate that he did not want to be touched. 56.1
Counterstatement 6, J 9; see also Muhammad Dep. Tr. 100:3—101:6; Decl. of
Michael J. Kesselman Opp’n Mot. Summ. J. (“Kesselman Decl.”), Ex. 2 (“Pl.’s
Video”), 1:10-1:15, ECF No. 45-2. Muhammad further denies having contorted
his body or otherwise resisting when Lepore tried to arrest him. 56.1 Counter-
statement 6, § 10; see also Muhammad Dep. Tr. 106:8—15. Muhammad asserts
that Lepore then lifted him into the air and threw him violently onto the floor.
56.1 Counterstatement 6, §[ 11; see also Pl.’s Video, 1:15-1:20; Muhammad
Dep. Tr. 103:18-104:6. Muhammad further contends that Lepore tried, but
failed, to execute a double-hook bear hug maneuver; instead of releasing his
grip and landing beside Muhammad, Lepore continued to grasp his hands to-
gether and landed on top of Muhammad. 56.1 Counterstatement 7, {{{ 13-14;
see also Pl.’s Video, 1:15-1:20.
Muhammad testified that he immediately felt pain on his right side. 56.1
Counterstatement 7, § 15; see also Muhammad Dep. Tr. 110:10—111:11,
111:20—-112:8. He subsequently went to the emergency room, where doctors
told him that he had broken his hip and would need surgery. 56.1 Counter-
statement 7, { 16; see also Muhammad Dep. Tr. 120:21-121:21; 123:17—
125:12.
Muhammad was ultimately charged with Criminal Trespass in the Third
Degree in violation of N.Y. Penal Law § 140.10 and Resisting Arrest in viola-
tion of N.Y. Penal Law § 205.30. 56.1 Statement § 42.
B.
Muhammad filed a complaint in New York State Supreme Court against
the defendants on September 2, 2023, and then amended his complaint on Sep-
tember 22, 2023. See Alterman Decl., Exs. A & B. The Port Authority removed
the action to this Court on November 9, 2023. ECF No. 1. The Port Authority
answered the amended complaint on November 16, 2023. ECF No. 4. Lepore
answered on January 10, 2024. ECF No. 12.
Muhammad’s amended complaint alleges claims for excessive force in
violation of the Fourth Amendment to the United States Constitution, as well
as New York state-law claims for assault and battery, negligent hiring and
retention, false arrest, false imprisonment, intentional and negligent infliction
of emotional distress, and malicious prosecution. The defendants now move for
summary judgment dismissing all of Muhammad’s claims. ECF No. 38.
II.
The standard for granting summary judgment is well established. The
Court “shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). “[T]he trial court’s task at the summary judgment
motion stage of the litigation is carefully limited to discerning whether there
are any genuine issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined at this point to issue-finding; it does not extend to
issue-resolution.” Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219,
1224 (2d Cir. 1994). The moving party bears the initial burden of “informing
the district court of the basis for its motion” and identifying the matter or mat-
ters that “it believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323. The substantive law governing the case will
identify those facts which are material, and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly pre-
clude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). But “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). “In-
controvertible evidence relied on by the moving party, such as a relevant
videotape whose accuracy is unchallenged, should be credited by the court on
such a motion if it so utterly discredits the opposing party’s version that no
reasonable juror could fail to believe the version advanced by the moving
party.” Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007).
Summary judgment is improper if there is any evidence in the record
from any source from which a reasonable inference could be drawn in favor of
the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37
(2d Cir. 1994). Ifthe moving party meets its burden, the nonmoving party must
2 Although Zellner involved a motion for judgment as a matter of law, it is well-
established that “the standard for granting summary judgment mirrors the
standard for judgment as a matter of law.” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).
produce evidence in the record and “may not rely simply on conclusory state-
ments or on contentions that the affidavits supporting the motion are not
credible.” Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993); see
also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).
III.
The defendants move for summary judgment on all of Muhammad’s
claims: his federal excessive-force claim and his state-law claims for assault
and battery, negligent hiring and retention, false arrest, false imprisonment,
intentional and negligent infliction of emotional distress, and malicious prose-
cution.
Muhammad concedes that summary judgment dismissing his claims for
negligent hiring and retention, false arrest, false imprisonment, intentional
and negligent infliction of emotional distress, and malicious prosecution is ap-
propriate. He also concedes that the Port Authority Police Department is not a
suable entity. And he concedes that he cannot establish municipal liability for
his Fourth Amendment claim against the Port Authority under Monell v. De-
partment of Social Services, 486 U.S. 658 (1978). Mem. Law Opp’n Mot.
Summ. J. “Opp’n”) 2, ECF No. 47.
Muhammad argues, however, that genuine disputes of material fact re-
main with respect to his federal excessive-force claim against Lepore, his
assault-and-battery claim against Lepore and the Port Authority, and his re-
quest for punitive damages.
A.
1.
The defendants first move for summary judgment on Muhammad’s claim
under 42 U.S.C. § 1983 that Lepore used excessive force in violation of the
Fourth Amendment. “A police officer violates the Fourth Amendment if the
amount of force he uses in effectuating an arrest is ‘objectively unreasonable’
in light of the facts and circumstances confronting the officer.” Lennox v. Mil-
ler, 968 F.3d 150, 155 (2d Cir. 2020) (quoting Graham v. Connor, 490 U.S. 386,
397 (1989)). “A determination of whether the force was reasonable ‘requires
careful attention to the facts and circumstances of each particular case, includ-
ing [1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officer or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting
Graham, 490 U.S. at 396). “A court’s role in considering [a motion for summary
judgment on] excessive force claims is to determine whether a jury, instructed
as to the relevant factors, could reasonably find that the force used was exces-
sive.” Brown v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015).
Muhammad argues that the first Graham factor incontrovertibly favors
him and that there are, at a minimum, genuine disputes of material fact re-
garding the second and third Graham factors.
The first factor—the severity of the crime at issue—favors Muhammad.
Lepore initially stopped Muhammad and Porter for fare evasion. After he was
arrested, Muhammad was charged with third-degree criminal trespass and
resisting arrest. These offenses are misdemeanors under New York law. See
N.Y. Penal Law § 140.10 (“Criminal trespass in the third degree is a class B
misdemeanor.”); N.Y. Penal Law § 205.30 (“Resisting arrest is a class A misde-
meanor.”). Misdemeanors are non-serious crimes for purposes of the Graham
analysis. See Ketcham v. City of Mount Vernon, 992 F.3d 144, 150 (2d Cir.
2021) (finding that the first Graham factor favored the plaintiff because “the
offense was a misdemeanor’). The defendants do not contest this factor.
The second factor—whether Muhammad posed an immediate threat at
the time Lepore used force—is the subject of a genuine factual dispute. Mu-
hammad and Porter were walking through the station before Lepore
approached them. Pl.’s Video, 0:50-1:10. Porter approached Lepore and began
speaking, and the two walked side-by-side while Muhammad continued to
walk ahead without engaging. Id. 0:58-1:05. Lepore pushed Porter away with
one arm while Porter appeared to be speaking. Id. 1:07-1:08. Lepore then tried
to grab Muhammad. Id. 1:10-1:11. Muhammad contends that he raised his
arms in “a defensive posture to defend himself’ and backed away from Lepore.
Opp’n 7; see also Pl.’s Video, 1:08-1:12. The defendants, by contrast, argue that
Muhammad “threatened the safety of Officer Lepore by striking his left fore-
arm, physically pulling away from him, and refusing multiple lawful
commands.” Reply Mem. Law Supp. Mot. Summ. J. (“Reply”) 3, ECF No. 48;
see also Lepore Dep. Tr. 38:2—-39:21; Def.’s Video, 0:24—0:29.
That Muhammad failed to comply with Lepore’s lawful commands “alone
does not create a threat to safety.” Harris, 2023 WL 2051171, at *38; see also
10
Brown, 798 F.3d at 102 “At most, [the plaintiffs] ‘resistance’ was a refusal to
permit the easy application of handcuffs by placing her hands behind her
back,” and she “posed no threat whatever to the safety of the officer or others.”).
As for whether Muhammad physically struck Lepore, the parties dispute what
happened, and the evidence in the record is unclear. Although both Muham-
mad and the defendants cite the surveillance video of the incident to support
their accounts, the video does not conclusively show whether Muhammad
struck Lepore or instead merely abruptly raised his hands to withdraw. And
the parties point to contradictory deposition testimony. Lepore testified that
Muhammad flailed and struck Lepore’s left forearm. Lepore Dep. Tr. 41:18—
42:17. Lepore also testified that Muhammad struck him with a “[rJeasonable
amount of force,” which hurt “[a] little bit.” Id. 42:12, 42:16-17. Muhammad,
for his part, testified that he never flailed his arms and that he was not sure
whether he “swat[ted]” at Lepore’s arms while raising his arms. Muhammad
Dep. Tr. 101:7-15. Despite the defendants’ plausible contention that Muham-
mad swatted Lepore’s arm away, a reasonable jury could, on this record, find
that Muhammad posed no threat when Lepore brought him to the ground.
The third factor—whether Muhammad was actively resisting arrest or
attempting to evade arrest by flight—is also subject to a genuine dispute. “For
purposes of the excessive force analysis, resisting arrest can include passive
resistance or non-compliance.” Harris, 2023 WL 2051171, at *8; see also Am-
nesty Am. v. Town of W. Hartford, 361 F.3d 118, 123 (2d Cir. 2004) (holding
that law-enforcement officer violated the Fourth Amendment by throwing the
plaintiff to the ground in response to “resistance to arrest [that] was purely
passive”). The defendants contend that at the time Lepore threw Muhammad
to the ground, Muhammad was “refus[ing] to comply” and “instead contorting
his body to prevent” his arrest. Mem. Law Supp. Mot. Summ. J. (“Mot.”) 3, ECF
No. 41. Lepore also testified that Muhammad “contorted his body” and “tight-
ened up so” that Lepore could not handcuff him. Lepore Dep. Tr. 39:5—6.
Muhammad, by contrast, testified that he did not resist or “try to maneuver”
his hands while Lepore was trying to arrest him. Muhammad Dep. Tr. 106:8—
16. The parties again cite the surveillance footage to support their accounts,
but it is unclear from the video whether Muhammad was resisting when Le-
pore threw him to the ground. See Pl.’s Video, 1:13-1:18. A reasonable jury
could conclude, despite the defendants’ insistence to the contrary, that Mu-
hammad was not resisting arrest at the time Lepore threw him to the ground.
The defendants resist this conclusion by pointing to the report of their
expert, John Monaghan, who concluded that Lepore appropriately executed
the double-hook bear hug takedown under the circumstances. Reply 6-8. Ac-
cording to Monaghan, “Muhammad responded by smacking Officer Lepore’s
hands away,” at which point “the officer’s uniform presence and verbal persua-
sion efforts had failed, and it became an arrest situation.” Alterman Decl.,
Ex. H, at 10, ECF No. 39-8. But Monaghan’s report does not resolve any of the
disputed factual questions. To the contrary, his conclusion rests on several as-
sumptions that Muhammad disputes with his own record evidence, such as
whether he smacked Lepore’s left arm and whether he was resisting arrest at
12
the time Lepore used the takedown maneuver. A reasonable jury could con-
sider the evidence and reach a different conclusion. See Giles v. Rhodes, 17 LF.
Supp. 2d 220, 226-27 (S.D.N.Y. 2001) (“[I]t is well established that a lay jury
can refuse to credit an expert’s opinion, even if another expert was not called
on to rebut it.”).
Moreover, while Monaghan opines that the force used was a reasonable
application of the double-hook bear hug maneuver, the plaintiff points out that
the instructional materials for Port Authority Police Officers state that when
using the maneuver, “it is very important” that the officer “release[s] [his]
hands as [he] take[s] the threat down to avoid landing on the threat.” Kessel-
man Decl., Ex. 1, at PA 0099 at □ H 4, ECF No. 45-1. In this case, however,
Lapore landed squarely on top of Muhammad with the full force of Lepore’s
body. Defs.’ Video, 00:33. Monaghan makes no mention of this fact in his re-
port.
Interpreting the evidence in the light most favorable to Muhammad, a
reasonable jury could conclude, despite Muhammad’s failure to comply with
Lepore’s instructions, that he posed no threat and that Lepore’s use of force—
throwing Muhammad to the ground with sufficient force to break his hip—was
objectively unreasonable under the circumstances. “An aggregate assessment
of all three relevant Graham factors” thus points “toward a determination of
excessive force and, at a minimum, to preclude a ruling against the victim on
a motion for summary judgment.” Brown, 798 F.3d at 102.
18
2.
The defendants argue that even if Lepore used excessive force against
Muhammad, Lepore would nevertheless be protected by qualified immunity.
“The doctrine of qualified immunity shields police officers acting in their offi-
cial capacity from suits for damages unless their actions violate clearly-
established rights of which an objectively reasonable official would have
known.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022).
“Officials operating under color of state law” are entitled to qualified immunity
at the summary-judgment stage “when they can establish that either (1) a con-
stitutional right was not violated or (2) the right was not clearly established at
the time of the violation.” Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014).
“Courts are cautioned not to define clearly established law at a high level of
generality, and police officers are entitled to qualified immunity unless exist-
ing precedent squarely governs the specific facts at issue.” Lennox, 968 F.3d at
156—57. “This is not to say that there must be a case directly on point for a
right to be clearly established, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Id. “To determine quali-
fied immunity on a motion for summary judgment, the facts are construed, and
all reasonable inferences are drawn, in favor of’ the nonmovant. Harris, 2023
WL 2051171, at *6.
Drawing all inferences in Muhammad’s favor, the relevant facts are: Mu-
hammad was walking through the station after failing to pay the fare; he
ignored Lepore’s commands and continued walking; when Lepore first
14
attempted to grab him, he raised his hands abruptly to signal that he did not
want to be touched; Lepore grabbed him again; he did not resist, but Lepore
threw him to the ground, failing to execute the takedown maneuver properly.
As the Court of Appeals for the Second Circuit has explained, it is “clearly es-
tablished in this Circuit that it is a Fourth Amendment violation for a police
officer to use significant force against an arrestee who is no longer resisting
and poses no threat to the safety of officers or others.” Jones v. Treubig, 963
F.3d 214, 225 (2d Cir. 2020); see also Lennox, 968 F.3d at 157 “On July 22,
2016, it was therefore clearly established by our Circuit caselaw that it is im-
permissible to use significant force against a restrained arrestee who is not
actively resisting.”). “[T]his is true despite differences in the precise method by
which th[e] force is conveyed.” Lennox, 968 F.3d at 157. Because a reasonable
jury could conclude that Lepore used significant force and that Muhammad
was neither threatening nor resisting at the time Lepore deployed that force,
Lepore has failed to establish that he is entitled to qualified immunity as a
matter of law on this record.
* * *
Muhammad has identified genuine factual disputes regarding the threat
he posed to Lepore and others and the amount of resistance, if any, he offered
at the time Lepore threw him to the ground. And these factual disputes, if re-
solved in Muhammad’s favor, would both establish a Fourth Amendment
violation and preclude Lepore from invoking qualified immunity. The
15
defendants’ motion for summary judgment dismissing Muhammad’s federal
excessive-force claim against Lepore is therefore denied.
B.
The defendants also move for summary judgment dismissing Muham-
mad’s state-law claims for assault and battery against Lepore and the Port
Authority.
“Except for § 1983’s requirement that the tort be committed under color
of state law, the essential elements of excessive force and state law assault and
battery are substantially identical.” Humphrey v. Landers, 344 F. App’x 686,
688 (2d Cir. 2009) (summary order) (quoting Posr v. Doherty, 944 F.2d 91, 94—
95 (2d Cir. 1991)). Lepore is not entitled to summary judgment on Muham-
mad’s state-law assault claim for the same reason he is not entitled to
summary judgment on Muhammad’s Fourth Amendment claim: there are gen-
uine disputes of material fact regarding the reasonableness of Lepore’s use of
force.
Unlike with his Fourth Amendment claim, Muhammad also brings his
state-law assault-and-battery claim against the Port Authority, which he ar-
gues is vicariously liable for Lepore’s conduct. The defendants do not
meaningfully dispute that Lepore was acting within the scope of his employ-
ment when he threw Muhammad to the ground. Therefore, the defendants’
motion for summary judgment dismissing Muhammad’s state-law claim
against the Port Authority also fails. That would be true regardless of Lepore’s
16
entitlement to qualified immunity because “a municipal employer is vicari-
ously liable for the wrongs of its employee, even when the employee is
individually immune, so long as the wrong was committed within the scope of
employment.” Triolo v. Nassau Cnty., 24 F.4th 98, 110 (2d Cir. 2022) (holding
that Nassau County was vicariously liable for state-law claims arising out of
the conduct of an employee who was entitled to individual immunity); see also
id. at 110 n.8 (concluding that Monell’s municipal-custom-or-policy rule does
not apply when “a municipal employer [is] held vicariously liable for its em-
ployee’s wrongs under New York law’).
The defendants argue that Muhammad cannot pursue a claim for assault
and battery under New York law because that claim would duplicate his
Fourth Amendment claim. But the defendants are mistaken. A plaintiff ordi-
narily cannot recover multiple times for the same injury, but can pursue
overlapping claims. Indeed, “it is well-established that a plaintiff may pursue
a Fourth Amendment excessive force claim and state law assault and battery
claims in the same action.” Quezada v. City of Waterbury, 2023 WL 5096144,
at *5 (D. Conn. Aug. 9, 2023); see also Sabino v. Port Auth. Police Dep’t, 2024
WL 3728974, at *5 (S.D.N.Y. Aug. 7, 2024) (“However, this Court has allowed
plaintiffs to bring claims for both state law assault and battery and excessive
force under Section 1983 in the same action.”).
The defendants’ motion for summary judgment dismissing Muhammad’s
state-law assault-and-battery claims against Lepore and the Port Authority is
therefore denied.
17
C.
Finally, the defendants move for summary judgment dismissing Mu-
hammad’s “claim for punitive damages.” Reply 10. As an initial matter, “[i]t is
well established in New York law that punitive damages are a remedy and not
a separate cause of action.” Tears v. Boston Sci. Corp., 344 F. Supp. 3d 500,
517 (S.D.N.Y. 2018). Punitive damages, moreover, are generally available for
assault and battery under New York law and excessive force under the Fourth
Amendment. See Doe v. Olive Leaves, Inc., 2024 WL 3048373, at *12 (E.D.N.Y.
Feb. 16, 2024) (“Punitive damages are also recoverable in an action for assault
and battery under New York law”); Jackson v. Tellado, 2018 WL 4043150, at
*9 (E.D.N.Y. Aug. 24, 2018) (“[N]umerous cases from this Circuit have deter-
mined that punitive damages awards are appropriate for excessive force
claims.”) (collecting cases).
The defendants contend that Muhammad’s request for punitive damages
is nevertheless legally insufficient because he “did not allege punitive damages
against Officer Lepore in his individual capacity but rather as an employee of
the Port Authority.” Reply 10. But it is not clear what more the defendants
believe Muhammad must allege. His complaint contends that Lepore acted un-
lawfully while working as a law-enforcement official for the Port Authority,
and that he seeks punitive damages. Alterman Decl., Ex. B (‘Corrected Com-
plaint”) 45-48, ECF No. 39-2. The defendants cite no case that a plaintiff
cannot recover punitive damages from a state or municipal law-enforcement
officer when that law-enforcement officer is acting within the scope of his
18
employment. The Court cannot conclude that Muhammad is unable to recover
punitive damages from Lepore as a matter of law. The defendants’ motion for
summary judgment dismissing Muhammad’s request for punitive damages
with respect to Lepore is therefore denied.
The Port Authority, by contrast, cannot be held lable for punitive dam-
ages. “Although the Court of Appeals for the Second Circuit has not addressed
the question, other courts in this district have applied to the Port Authority
the Supreme Court’s reasoning in City of Newport v. Fact Concerts, Inc. that
municipalities should not be subject to punitive damages.” Holden v. Port
Auth. of N.Y. & N.J., 521 F. Supp. 3d 415, 487 (S.D.N.Y. 2021). “The combina-
tion of the Port Authority’s liability for compensatory damages and individual
officer liability for both compensatory and punitive damages should be suffi-
cient to satisfy the goal of deterrence.” Id. Accordingly, “the Port
Authority ... is immune from punitive damages.” Id.; see also Kosmidis v. Port
Auth. of N.Y. & NJ., No. 18-cv-8418, 2021 WL 4442812, at *6 (S.D.N-Y.
Sep. 28, 2021) (granting summary judgment dismissing request for punitive
damages on the plaintiffs federal excessive-force and state assault-and-battery
claims because “punitive damages cannot be assessed against the Port Author-
ity”); Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 357 (8d Cir. 2001)
(same). .
19
CONCLUSION
The Court has considered all the arguments raised by the parties. If any
argument was not specifically addressed, it is either moot or without merit.
For the foregoing reasons, the defendants’ motion for summary judgment dis-
missing Muhammad's claims for excessive force under the Fourth Amendment
and for assault and battery under New York law against Lepore is denied.
The motion for summary judgment dismissing Muhammad’s assault-and-bat-
tery claim against the Port Authority is denied. The defendants’ motion for
summary judgment dismissing Muhammad’s request for punitive damages for
the federal excessive-force claim and the state assault-and-battery claim
against Lepore is denied. The motion is otherwise granted.
The Clerk is respectfully directed to close ECF Nos. 38 and 50.
SO ORDERED.
Dated: New York, New York oN fff 4
May 15, 2026 Mow, be (Geer
i A John G. Koeltl
United States District Judge
20