Opinion

War

Court: District Court, N.D. New York
Filed: Aug 26, 2026
Cited by: 0 cases

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

___________________________________________

CHEE WAR, as Administrator of the Estate of

Nyah Mway,

Plaintiff,

v. 6:25-CV-824

(FJS/CBF)

CITY OF UTICA and OFFICER PATRICK

HUSNAY,

Defendants.

____________________________________________

APPEARANCES OF COUNSEL

EMERY CELLI BRINCKERHOFF EARL WARD, ESQ.

ABADY WARD & MAAZEL LLP HAFSA S. MANSOOR, ESQ.

One Rockefeller Plaza, 8th Floor JULIA P. KUAN, ESQ.

New York, New York 10020

Attorneys for Plaintiff

CAMBARERI & BRENNECK MELISSA SWARTZ-BRAGG, ESQ.

300 South State Street, 1st Floor

Syracuse, New York 13202

Attorneys for Plaintiff

FOTI HENRY PLLC DANIEL CARTWRIGHT, ESQ.

403 Main Street - Suite 225 DAVID H. WALSH, IV, ESQ.

Buffalo, New York 14203

Attorneys for Defendants

SCULLIN, Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Pending before the Court is Defendants' motion to dismiss, pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. See Dkt. No. 10. Plaintiff opposes the motion. See Dkt.

No. 13.

II. BACKGROUND

On June 25, 2025, Plaintiff Chee War, in her capacity as the Administrator of the Estate

of her son Nyah Mway, filed her complaint against Defendants City of Utica and Officer Patrick

Husnay. See Dkt. No. 1, Complaint. In her complaint, Plaintiff alleges that, on the evening of

June 28, 2024, while walking on Shaw Street in Utica, New York, her son Nyah Mway, who was

13 years old at the time, was stopped by three uniformed Utica Police officers for jaywalking and

insisted on searching him. See id. at ¶ 1. Plaintiff alleges that, as an immigrant who had fled

with his family from a military regime in Burma, Nyah, fearing these armed uniformed police

officers, began running down the street. See id. at ¶ 2. "[W]hile running after Nyah, Officer

Patterson yelled 'Gun!' after seeing a black pellet gun in Nyah's hand." See id. at ¶ 38. Plaintiff

asserts that, "[w]ithin ten seconds of chasing Nyah, Officer Bryce Patterson grabbed Nyah, threw

him to the ground, and repeatedly punched Nyah about the face and body while having him

pinned to the ground." See id. at ¶¶ 3, 41. Finally, Plaintiff contends that, "[w]hile Officer

Patterson was still on top of Nyah punching him, Defendant Officer Patrick Husnay walked over

and shot Nyah point-blank in the chest, [penetrating his heart and lung] - killing him." See id. at

¶¶ 4, 43. Finally, Plaintiff contends that, "after firing the shot that killed Nyah, . . ., Defendant

Husnay recovered the pellet gun in a grassy area several feet from where Nyah laid [sic] bleeding

out from the gunshot wound." See id. at ¶ 44.

Plaintiff asserts the following causes of action against Defendants:

(1) First Cause of Action - Excessive Force pursuant to 42 U.S.C.

§ 1983, Fourth and Fourteenth Amendments to the U.S.

Constitution against Defendant Husnay. See Complaint at ¶¶ 48-

(2) Second Cause of Action - Excessive Force under the N.Y. State

Constitution, Art. I, § 21, against both Defendants. See Complaint

at ¶¶ 53-58

(3) Third Cause of Action - Common Law Battery against both

Defendants. See Complaint at ¶¶ 59-62

(4) Fourth Cause of Action - Common Law Assault against both

Defendants. See Complaint at ¶¶ 63-66

(5) Fifth Cause of Action - Reckless Hiring, Training, Supervision,

Discipline, Staffing, and Retention against Defendant City of

Utica. See Complaint at ¶¶ 67-71

See, generally, Complaint.

Based on the allegations in her complaint, Plaintiff seeks the following relief: (1) an

award of compensatory damages to "fully compensate Plaintiff for the loss of rights, physical

injuries, pain and suffering, hedonic damages, and emotional distress suffered due to Defendants'

unlawful conduct; (2) an award of punitive damages; and (3) an award of attorney's fees, costs

and expenses incurred in prosecuting this action under 42 U.S.C. § 1988. See Complaint at

WHEREFORE Clause.

III. DISCUSSION1

A. Preliminary matters

In response to Defendants' concerns regarding Plaintiff's official capacity claims and her

request for punitive damages, Plaintiff has clarified that she is only suing Defendant Husnay in

his individual capacity and is only seeking punitive damages against Defendant Husnay. Given

these clarifications, the Court need not address these arguments.

1 References to page numbers of documents in the record are to the page numbers that the Court's

Electronic Case Filing System generates and are located in the top right corner of those pages.

B. Standard of review

"A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of a party's claim for relief." United States of

America v. Bd. of Elections of the State of New York, No. 1:25-CV-1338 (MAD/PJE), 2026 WL

1999921, *7 (N.D.N.Y. July 10, 2026) (citing Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.

2007) (citation omitted)). "In considering the legal sufficiency, a court must accept as true all

well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor." Id.

(citing ATSI Commc'ns, Inc. v. Shar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation

omitted)). "To survive a motion to dismiss, a party need only plead 'a short and plain statement

of the claim,' see Fed. R. Civ. P. 8(a)(2), with sufficient factual 'heft to "sho[w] that the pleader is

entitled to relief[.]"'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)

(quotation omitted)). "Under this standard, the pleading's '[f]actual allegations must be enough

to raise a right [to] relief above the speculative level,' see id. at 555 (citation omitted), and

present claims that are 'plausible on [their] face,' id. at 570." Id. at 7.

"'The plausibility standard is not akin to a "probability requirement," but it asks for more

than a sheer possibility that a defendant has acted unlawfully.'" Id. (quoting Iqbal, 556 U.S. at

678 (citation omitted)). "'Where a complaint pleads facts that are "merely consistent with" a

defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement

to relief."'" Id. (quoting Twombly, 550 U.S. at 557). "Ultimately, 'when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief,' Twombly, 550 U.S. at

558, or where a plaintiff has 'not nudged [his or her] claims across the line from conceivable to

plausible, the[] complaint must be dismissed.'" Id. (quoting [Twombly, 550 U.S.] at 570).

Finally, when deciding a motion to dismiss, "the court may consider 'documents attached

to, or incorporated by reference in the Complaint, and matters of which judicial notice may be

taken[.]'" Id. (quoting Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275

(S.D.N.Y. 2002) (citing Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d

Cir. 1999)) (other citation omitted)). "'To be incorporated by reference, the complaint must make

a clear, definite and substantial reference to the documents. . . . [and] [t]o be integral to a

complaint, the plaintiff must have (1) actual notice of the extraneous information and (2) relied

upon the documents in framing the complaint.'" Benny v. City of Long Beach, No. 20-CV-1908

(KAM), 2021 WL 4340789, *10 (E.D.N.Y. Sept. 23, 2021) (quoting Walia v. Napolitano, No.

CV112512(SJF)(SIL), 2017 WL 10378189, at *9 (E.D.N.Y. Dec. 4, 2017) (quoting Allstate Ins.

Co. v. Rozenberg, 771 F. Supp. 2d 254, 268 (E.D.N.Y. 2011)) (quoting DeLuca v. AccessIT

Group, Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010) (internal quotation marks, citations, and

alterations omitted))).

C. Plaintiff's excessive force claim against Defendant Husnay

"Every person has a Fourth Amendment right to be free from excessive force by police

officers, including during the course of an arrest." Jackson v. Cty. of Ulster, No. 1:22-cv-148

(TJM/ATB), 2022 U.S. Dist. LEXIS 132123, *5 (N.D.N.Y. July 26, 2022) (citing Graham v.

Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). "To succeed on a

Fourth Amendment claim, a plaintiff must demonstrate that the actions of the defendant officer

were not '"objectively reasonable" in light of the facts and circumstances as presented to [the

officer] at the time of the plaintiff[']s arrest.'" Id. (quoting [Graham v. Connor, 490 U.S.] at 397).

"Application of physical force is excessive when it is more than necessary under the

circumstances." Brown v. City of New York, No. 11 Civ. 1068 (AJN), 2013 U.S. Dist. LEXIS

17483, *26 (S.D.N.Y. Feb. 8, 2013) (citing Curry v. City of Syracuse, 316 F.3d 324, 332 (2d Cir.

2003)).

"Whether an officer's actions were reasonable depends on a fact-intensive inquiry which

takes account of 'the facts and circumstances of each particular case, including the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'"

Jackson, 2022 U.S. Dist. LEXIS 132123, at *5 (quoting [Graham, 490 U.S.] at 396-97). "'[T]he

factfinder must determine whether, in light of the totality of the circumstances faced by the

arresting officer, the amount of force used was objectively reasonable at the time.'" Merone v.

City of New York, No. 24-cv-8730 (BMC), 2025 U.S. Dist. LEXIS 233907, *6 (E.D.N.Y. Dec. 1,

2025) (quoting [Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004)] (citing

Graham, 490 U.S. at 397)).

"[C]ourts are rarely able to assess the reasonableness of the force used at the motion to

dismiss stage." Hester-Bey v. Ford, No. 13-CV-4656 (CBA) (LB), 2015 U.S. Dist. LEXIS

107836, *7 (E.D.N.Y. Aug. 13, 2015). "Indeed, a motion to dismiss may be granted in an

excessive force case only if, after accepting all allegations as true, the force used was objectively

reasonable as a matter of law." Id. (citing Pelt v. City of New York, No. 11-CV-5633 (KAM)

(CLP), 2013 U.S. Dist. LEXIS 122848, 2013 WL 4647500, at *13 (E.D.N.Y. Aug. 28, 2013)

(granting motion to dismiss an excessive force claim where plaintiff alleged only that officers

made verbal threats because such allegations are insufficient as a matter of law)) (other citation

omitted). Where a complaint alleges that an officer exerted actual physical force against a

plaintiff, courts have found that the question of whether the force used was reasonable and

justified or not, "is simply not a question that the Court can resolve at [the motion to dismiss]

stage[.]" Id. at *7.

In the present case, Plaintiff claims that, "Officer Patterson was on top of Nyah, using his

body and left arm to pin him down on the ground, while forcefully punching Nyah in the face

with his right fist[,] Nyah, being only 5'5" and 111 pounds, was completely restrained and inert."

See Dkt. No. 1, Complaint, at ¶ 41. Furthermore, according to Plaintiff, "[l]ess than a second

later, at 10:19:03 PM, Defendant Husnay ran up to where Officer Patterson was on top of Nyah

[and] [t]hree seconds later, at 10:19:06 PM, while Officer Patterson was still on top of Nyah

punching him, Defendant Husnay without cause or justification fired a single bullet into Nyah's

left chest, penetrating his heart and lung -- killing him." See id. at ¶¶ 42-43. Finally, "[t]wenty

seconds after firing the shot that killed Nyah, at 10:19:26 PM, Defendant Husnay recovered the

pellet gun in a grassy area several feet from where Nyah laid bleeding out from the gunshot

wound." See id. at ¶ 44.

In support of their motion to dismiss, Defendants "seek to introduce body worn cam

("BWC") footage for consideration of this motion." See Dkt. No. 10-1, Defendants'

Memorandum of Law, at 8 (citing Exhibits C-E). They argue, based on Manzi v. Goldfine, No.

23-CV-05176 (PMH), 2024 WL 2943876, *4 (S.D.N.Y. June 10, 2024), that "consideration of

BWC footage is appropriate as Plaintiff's complaint clearly relies on it to frame the[] complaint."

See id. at 9 (citation omitted). Specifically, Defendants contend that "Plaintiff[']s complaint

alleges facts down to the second they allegedly occurred, with a degree of specificity that would

be impossible without the benefit of time-stamped BWC footage." See generally id. Moreover,

Defendants argue that, "[i]n advance of commencing this action, Plaintiff[']s counsel[] requested

-- and [was] furnished -- the BWC footage from the City pursuant to the Freedom of Information

Act ("FOIL"), which confirms that [Plaintiff's counsel] possessed the material." See id. (citing

Exhibits A-B). Defendants contend that, "[n]ot only did Plaintiff[']s counsel receive the BWC

footage prior to commencement of the action, it is publicly available online, thus further

establishing that Plaintiff[] had access to -- and relied on -- the BWC footage in framing [the]

complaint." See id. "Therefore, in accordance with Manzi, 2024 WL 2943876," Defendants

assert that the Court should consider the BWC footage in deciding this motion. See id.

In response to Defendants' position, Plaintiff argues that Defendants' "entire 12(b)(6)

motion hinges on a request that the Court engage in fact-finding in direct contravention of

unambiguous Supreme Court and Second Circuit precedent forbidding it when there are disputed

issues of fact." See Dkt. No. 13, Plaintiff's Memorandum of Law, at 5. Specifically, Plaintiff

asserts that "Defendants ask that, based on dark, nighttime, redacted, and blurry body-worn

camera footage, the Court 'conclusively' find that thirteen-year-old Nyah Mway was pointing a

lethal weapon at police officers when Defendant Officer Husnay shot him at point blank range --

notwithstanding express allegations in Plaintiff's complaint that Nyah was pinned to the ground,

completely restrained by Officer Patterson and inert, when Officer Husnay shot him." See id.

Even if the Court were to conclude that the BWC footage was incorporated into the

complaint and that, therefore, the Court could consider that footage in deciding Plaintiff's motion

to dismiss, that would not, necessarily, result in a decision in Defendants' favor. First, it appears

that the BWC footage on which Defendants rely to support their motion is a redacted version of

that footage. Furthermore, the Court's cursory review of that footage and the parties' arguments

about what that footage does and does not show indicate that there are undeniably issues of fact,

which the Court cannot resolve at this juncture of the litigation. Therefore, for purposes of

deciding Defendants' motion to dismiss, the Court will accept, as true, the well-pleaded factual

allegations in Plaintiff's complaint.

D. Plaintiff's Fourth Amendment excessive force claim against Defendant Husnay