# Cartagena v. City of New York

> New York Supreme Court, New York County · February 13, 2024 · 2024 NY Slip Op 30466(U)

URL: https://www.frixlaw.com/law-library/cases/9942019

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** February 13, 2024
- **Citations:** 2024 NY Slip Op 30466(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9942019

## Opinion text

Cartagena v City of New York
2024 NY Slip Op 30466(U)
February 13, 2024
Supreme Court, New York County
Docket Number: Index No. 159452/2017
Judge: Hasa A. Kingo
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 159452/2017
EDWIN CARTAGENA,
MOTION DATE 11/13/2023
Plaintiff,
MOTION SEQ. NO. 002
- V -

THE CITY OF NEW YORK, P.O. VERONICA NICKEY,
FORMER P.O. ALFONSO RODRIGUEZ, THE OFFICER
DECISION + ORDER ON
WHO PLACED, OTHER NEW YORK CITY POLICE
OFFICERS, AS IT PERTAINS TO THE MOTION

Defendant.
------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43,
44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59, 60, 61, 62, 63, 64, 65, 66, 67,68, 69
were read on this motion for JUDGMENT-SUMMARY

With the instant motion, defendants - THE CITY OF NEW YORK, P.O. VERONICA
NICKEY OF THE 28 PCT., SHIELD #15241, TAX ID #956130, FORMER P.O. ALFONSO
RODRIGUEZ SHIELD #12765, TAX ID #953329, SERGEANT LERON LEWIS, POLICE
OFFICER MATTHEW MESITER (hereinafter referred to as "defendants") - move: (1) Pursuant
to CPLR § 3211 for an order dismissing plaintiff EDWIN CARTAGENA's ('plaintiff) state law
causes of action, except malicious prosecution, as time-barred under GML § 50-E and CPLR §
217-A; (2) Pursuant to CPLR § 3212 for an order granting defendants summary judgment on
plaintiff's state and federal law false arrest and false imprisonment claims based on the presence
of probable cause and the state law claims as untimely; (3) Pursuant to CPLR § 3211(a)(7) and§
3212 for an order granting summary judgment and/or dismissing plaintiff's 42 U.S.C §1983 claim
of excessive force and state law claim of assault and battery against defendants, as the assault and
battery claims are untimely and plaintiff testified that Sergeant Lewis used force, and there is no
excessive force claim against Sergeant Lewis as indicated in this court's prior decision; (4)
Pursuant to CPLR § 3211(a)(7) and § 3212 for an order granting summary judgment and/or
dismissing plaintiff's state and federal malicious prosecution claims based on the presence of
probable cause for plaintiff's arrest and prosecution; (5) Pursuant to CPLR § 3211(a)(7) and §
3212 for an order granting summary judgment and/or dismissing plaintiff's federal 42 U.S.C §
1983 claims for unlawful stop and unlawful search based on the presence of probable cause for the
stop and the search was incident to a lawful arrest; (6) Pursuant to CPLR § 3212 and 3211(a)(7)
granting summary judgment and/or dismissing plaintiff's 42 U.S.C § 1983 ("Monell") claim
against the City for failure to state a claim or alternatively for an order bifurcating these claims at
the time of trial, dismissing plaintiff's complaint in its entirety as against the JOHN AND JANE
DOE officers; (7) Pursuant to CPLR § 321 l(a)(7) and§ 3212 for an order dismissing any negligent
hiring, training, and retention claims as the named defendants were acting within the scope of their

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 1 of 12
Motion No. 002

1 of 12
[* 1]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

employment; (8) Pursuant to CPLR §§ 3125(c), 1024, and 306(b) for an order dismissing plaintiff's
complaint in its entirety as against the JOHN AND JANE DOE officers; (9) Pursuant to CPLR §
3211(a)(7), for an order dismissing all other causes of action as insufficiently pled; and (10) For
such other and further relief as this court may deem just and proper.

BACKGROUND

In this action, plaintiff seeks compensation for purported violations of his civil rights and
for personal injuries allegedly suffered by plaintiff during his arrest by members of the New York
City Police Department ("NYPD") on or about April 24, 2016, near 129th Street and the 3rd
Avenue Bridge in the County of New York. On that date, NYPD officers were engaged in a
motorcycle checkpoint operation at the Third Avenue Bridge, where motorcycles were subjected
to stops.

Plaintiff, operating his motorcycle on the Third Avenue Bridge, was purportedly stopped
in accordance with the checkpoint protocol-though the plaintiff notably takes umbrage with that
characterization by defendants. Alongside the plaintiff, several other motorcycles were also
subjected to stops. During this traffic stop, plaintiff was informed that his motorcycle, due to an
unapproved helmet, would be impounded and secured at the 25th precinct. Plaintiff acknowledges
that he was not using a Department of Transportation ("DOT")-approved helmet and opted for
sunglasses instead of goggles.

Despite allegedly being instructed multiple times, plaintiff apparently adamantly refused
to allow the officers to take possession of his motorcycle, stating firmly, "you are not taking my
bike." Subsequently, plaintiff resumed riding his motorcycle. An officer then requested plaintiffs
keys, to which plaintiff responded by refusing to surrender them, stating, "you're not getting
nothing." After repeated non-compliance, Sergeant Leron Lewis ("Sergeant Lewis") intervened,
removing plaintiff from the motorcycle. Notably, Officer Alfonso Rodriguez ("Officer
Rodriguez") and Officer Veronica Nickey ("Officer Nickey") played no role in plaintiffs removal,
the use of force, or the subsequent handcuffing.

Ultimately, plaintiff was placed in handcuffs, and both his helmet and motorcycle were
documented at the precinct. Criminal charges, including Penal Law 195.05 for Obstructing
Governmental Administration in the Second Degree, were levied against plaintiff, along with four
traffic summonses. On February 22, 2017, plaintiffs criminal case was dismissed under the speedy
trial provisions.

On August 24, 2017, plaintiff gave sworn testimony at a hearing held pursuant to General
Municipal Law § 50-h. Plaintiff filed a summons and complaint on October 24, 2017. The City
joined issue with service of its answer, and combined discovery demands, on or about November
13, 2017. On February 5, 2018, the City served an amended answer on behalf of the named Officers
Nickey and Rodriguez. On or about January 18, 2019, the parties entered into a case scheduling
order. On February 22, 2019, plaintiff examination before trial ("EBT") was held. On or about
May 16, 2019, Officer Nickey's EB Twas held. On or about May 16, 2019, Officer Rodriguez EBT
was held. On July 22, 2019, plaintiff filed a motion to amend the complaint to add Sergeant Lewis
and Police Officer Matthew Meister ("Officer Meister"). On or about June 25, 2020, this court

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 2 of 12
Motion No. 002

2 of 12
[* 2]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

issued a decision on the motion allowing plaintiff to amend the complaint to add Sergeant Lewis
and Officer Meister only as to plaintiff's federal cause of action for malicious prosecution. On or
about December 22, 2022, the EBT of Sergeant Lewis was held. On September 11, 2023, plaintiff
filed note of issue and a certificate of readiness in this action. The instant motion was timely filed
thereafter.

ARGUMENTS

In support of their motion, defendants submit that plaintiff's state law claims, not including
malicious prosecution, must be dismissed as untimely and time-barred by the statute oflimitations.
In addition, defendants contend that since there was probable cause to arrest plaintiff for violating
New York Penal Law § 195.05 (Obstruction of Governmental Administration in the Second
Degree), plaintiff's false arrest and false imprisonment claims under both federal and state law fail.
Even if this court were to rule that a question of fact regarding probable cause exists, defendants
submit that the court should still dismiss any federal false arrest and false imprisonment claims
based on qualified immunity.

Defendants additionally argue that plaintiffs state law claims for assault and battery must
be dismissed as untimely, as a matter of law. They also contend that plaintiffs excessive force
claim against Sergeant Lewis should be disregarded since Sergeant Lewis is not being sued for
excessive force. Defendant states that this is because the court's previous ruling on plaintiffs
motion to amend the caption, adding Sergeant Lewis as a defendant, was restricted solely to a
federal cause of action for malicious prosecution against him.

Defendants further assert that plaintiffs claims for malicious prosecution must be
dismissed as a matter of law. This is based on their argument that plaintiff is unable to identify a
lack of probable cause for his arrest and subsequent prosecution. Additionally, defendants contend
that plaintiff cannot demonstrate actual malice on the part of defendants.

Defendants continue their argument, asserting that plaintiffs state law claims stemming
from an unlawful stop or search must be dismissed as untimely. Moreover, they contend that
plaintiffs claim for an unlawful search cannot proceed, especially when based on a search incident
to a lawful arrest under the special needs doctrine.

Defendants further contend that plaintiff's "Monell" claims cannot proceed because
plaintiff makes only broad conclusory allegations that his constitutional rights were violated due
to the City's failure to train and supervise its police officers and the City's failure to implement
policies to enforce the law. Defendants contend that these are precisely the type of legal
conclusions rejected by the United States Supreme Court. Further, defendants contend that no
"Monell" discovery has taken place and there is no evidence in the record to support a "Monell"
claim, thus requiring judgment in defendants' favor on plaintiff's "Monell" claims.

Likewise, defendants aver that plaintiff's causes of action alleging negligent hiring and
retention should be dismissed because the named defendant officers were acting within the scope
of his employment when plaintiff was arrested.

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 3 of 12
Motion No. 002

3 of 12
[* 3]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

Finally, defendants contend that plaintiffs supplementary claims against the JOHN AND
JANE DOE OFFICERS should be dismissed. They argue that these claims lack adequate
descriptions of individual defendants. In defendants' assessment, the complaint fails to provide
sufficient information for any individual defendant, merely identified as JOHN AND JANE DOE
OFFICERS, to understand that they are the intended target of the allegations solely by reading the
complaint.

In opposition to defendants' motion, plaintiff argues that the checkpoint in question lacked
a systematic and nonarbitrary process. Plaintiff highlights that the testimony from Sergeant Lewis
indicates a lack of clarity regarding the frequency and pattern of motorcycle stops, as he mentioned
an inconsistent range of stops during the checkpoint without recalling any established system or
pattern. In contrast, plaintiff further underscores that Officer Rodriguez contends that officers were
directed to stop every single motorcycle, irrespective of visible infractions, revealing a lack of
discernment in the stopping criteria. However, plaintiff highlights that Officer Nickey's testimony
contradicts this, stating that motorcycles were passing the checkpoint without being stopped,
further underscoring the absence of a coherent and uniform approach.

In plaintiff's estimation, this divergence in accounts highlights the arbitrary nature of the
initial stop involving plaintiff, and plaintiff contends that this suggests a lack of adherence to any
specific system. As such, plaintiff avers that the record raises material questions of fact concerning
the checkpoint's propriety, and plaintiff declares that this challenges defendants' assertion that the
stop and detention were conducted in a nonarbitrary and systematic manner, thus warranting the
denial of their motion for summary judgment.

After the contested vehicle stop, plaintiff highlights that Sergeant Lewis informed plaintiff
that his motorcycle would be impounded due to the helmet's alleged noncompliance with DOT
standards. Despite discrepancies in defendants' understanding of DOT compliance and the absence
of any verification of a DOT sticker on the helmet, plaintiff argues that plaintiff was not afforded
the opportunity to prove compliance by inspecting the inside of the helmet.Notably, plaintiff states
that another motorcyclist with a similar helmet received no penalties.

Plaintiff, subsequently acquiring a DOT-compliant helmet, argues that he was subjected to
an unwarranted seizure and impoundment of his motorcycle by Sergeant Lewis, even after
demonstrating compliance This sequence of events, plaintiff contends, casts doubt on the
justification for seizing plaintiffs motorcycle under the circumstances presented by defendants.

Furthermore, plaintiff argues that his arrest for Obstructing Governmental Administration
in the Second Degree lacked probable cause, as the seizure of his motorcycle was unlawful.
Plaintiff contends that the ensuing use of force by Sergeant Lewis, particularly against plaintiffs
prosthetic elbow, resulted in injuries requiring Emergency Room treatment. This excessive force,
plaintiff contends, as well as the lack of any violent conduct by plaintiff towards defendants,
supports the contention that the force utilized against plaintiff was unwarranted.

Plaintiff further contends that defendants' failure to establish probable cause for the arrest
and the subsequent malicious prosecution is further emphasized by the absence of Sergeant Lewis'
name in the criminal complaint, despite his role in initiating contact and directing the summons.

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 4 of 12
Motion No. 002

4 of 12
[* 4]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

Plaintiff argues that the circumstances surrounding the arrest and the subsequent termination of
the criminal proceedings in plaintiff's favor underscore the absence of probable cause and
malicious intent.

Likewise, plaintiff argues that defendants have not met their burden on summary judgment
to justify the actions leading to plaintiff's arrest and subsequent legal proceedings. Material
questions of fact persist, plaintiff contends, necessitating a jury determination. Consequently,
plaintiff urges the denial of defendants' motion for summary judgment on all pertinent claims.

In reply, defendants highlight that plaintiff's unopposed claims should be dismissed. As to
plaintiff's opposed claims, defendants reiterate that plaintiff has failed to raise triable issues of fact
or legal defenses, thereby necessitating dismissal of plaintiff's claims of false arrest, false
imprisonment, malicious prosecution, and excessive force.

LEGAL AUTHORITY

A. Summary Judgment Standard

The proponent of a motion for summary judgment must tender sufficient evidence to show
the absence of any material issue of fact and the right to entitlement to judgment as a matter oflaw
(Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v New York University Medical
Center, 64 NY2d 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of
his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled
to all favorable inferences that can be drawn from the evidence submitted and the papers will be
scrutinized carefully in a light most favorable to non-moving party (Assafv Ropog Cab Corp., 153
AD2d 520 [1st Dept 1989]). Summary judgment will only be granted if there are no material,
triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

It is well-settled that issue finding, not issue determination, is the key to summary judgment
(Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). When the existence of an issue of fact is
even fairly debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12
[1960]). Notwithstanding, A mere shadowy semblance of an issue of fact or bold, conclusory
allegations will not suffice to defeat amotion for summary judgment (Mallad Construction Corp.
v. County Federal Savings & Loan Assoc., 32 NY2d 285, 290 [1973]). Rather, opposition to
summary judgment must be based upon more than mere conclusions, expressions of hope, or
unsubstantiated allegations (Zuckerman, 49 NY2d at 562, supra). Speculation will not create an
issue of fact sufficient to defeat a motion for summary judgment (Itingen v. Weinstein, 260 AD2d
440, 441 [2d Dept 1999]). Rather, a plaintiff must submit proof in evidentiary form that establishes
a genuine issue of material fact to defeat a motion for summary judgment (Garnham & Han Real
Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [2d Dept 1989]).

B. Dismissal Standard

CPLR § 3211(a)(7) states that "[a] party may move for judgment dismissing one or more
causes of action asserted against him on the ground that...the pleading fails to state a cause of
action." (see CPLR § 32ll[a][7]). The standard of review to be used in determining whether a

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 5 of 12
Motion No. 002

5 of 12
[* 5]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

motion for dismissal pursuant to CPLR § 3211 should be granted is as follows: "Accepting the
allegations as true, [the] sole criterion is whether the pleading states a cause of action" (Polonetsky
v. Better Homes Depot Inc., 97 NY2d 46, 54 [2001]; Samiento v. World Yacht Inc., IO NY3d 70,
79 [2008]; see also CPLR § 3026 ["(p )leadings shall be liberally construed"]). Furthermore, a
court may freely consider affidavits submitted by plaintiff to remedy any defects in the complaint.
(Leon v. Martinez, 84 NY2d 83 [1994]; and must determine "whether the proponent of the pleading
has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 NY2d 268,
275 [1977]). However, "while factual allegations contained in the complaint are deemed true, bare
legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of
truth" (Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 AD3d 191, 194 [2d Dept 2009]).

CPLR § 3013 imposes a limitation on plaintiffs by tempering the liberal interpretation of
CPLR § 3211. CPLR § 3013 says that "[s]tatements in a pleading shall be sufficiently particular
to give the court and parties notice of the transactions, occurrences, or series of transactions or
occurrences, intended to be proved and the material elements of each cause of action or defense."

8(a)(2) of the Federal Rules of Civil Procedure provides that to state a claim for relief a
pleading must contain "a short and plain statement of the claim showing that the pleader is entitled
to relief' (see Fed. R. Civ. P. 8[a][2]). The United States Supreme Court in Ashcroft v. Iqbal held
that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face" (Ashcroft v Iqbal, 556 US 662, 678
[2009]).The New York Court of Appeals has held that while "plaintiffs' allegations are presumed
to be true and accorded every favorable inference, conclusory allegations-claims consisting of
bare legal conclusions with no factual specificity-are insufficient to survive a motion to dismiss"
(Godfrey v. Spano, 13 NY3d 358, 373 [2009]). Thus, the New York State pleadings standard is
analogous to the federal standard espoused in Iqbal.

DISCUSSION

A. Dismissal of Plaintiff's State Law Claims

Here, as an initial matter, defendants have sufficiently established that plaintiff's state law
claims, excluding malicious prosecution, must be dismissed as time-barred. Indeed, pursuant to
GML § 50-i(l) and CPLR § 217-a, the statute of limitations to commence an action against the
City of New York is one year and ninety days. An action is commenced when the defendant is
served with the summons and complaint (see CPLR § 203 [b ]). In New York, a claim for false arrest
and false imprisonment arises upon a plaintiff's release from custody (see Nunez v. City of New
York, 307 AD2d 218, 219 [2003]).

In this case, plaintiff's state law causes of action for false arrest and false imprisonment
accrued on April 25, 2016, when plaintiff was arraigned and released on his own recognizance.
Likewise, under New York Law, plaintiff's claims for illegal search and seizure, assault and
battery, and negligent hiring, training, retention, and supervision all accrued on April 24, 2016, the
date of plaintiff's arrest (see e.g., McElveen v Police Dept. of NY, 70 AD2d 858, 858 [1st Dept
1979]["A cause of action for assault accrues on the date of the assault."]).As such, the statute of
limitations expired on plaintiff's state law claims, excluding, malicious prosecution, on or before

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 6 of 12
Motion No. 002

6 of 12
[* 6]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

July 24, 2017. Plaintiff, however, did not file the summons and complaint until October 24, 2017,
roughly three months after the state law statute oflimitations expired. Accordingly, all of plaintiff's
state law claims, not including malicious prosecution, are dismissed as untimely and time-barred
by the statute of limitations.

B. Dismissal of Plaintiff's False Arrest and False Imprisonment Claims

As alluded to earlier, defendants submit that plaintiff's false arrest and false imprisonment
claims under both federal and state law should be dismissed because there was probable cause to
stop plaintiff pursuant to a lawful motorcycle checkpoint and arrest plaintiff for violating New
York Penal Law § 195.05 Obstruction of Governmental Administration in the Second Degree.
Defendants made a prima facie case in favor of this position by establishing that the facts leading
up to plaintiff's arrest are largely indisputable. Indeed, defendants submit that plaintiff: 1.) was
stopped pursuant to a motorcycle checkpoint; 2.) was informed that this was because his helmet
was not approved; and 3.) admitted that he was not wearing a DOT-approved helmet. Based on
this evidence, including plaintiff's own admissions and the video footage, defendants have made
a prima facie showing entitling them to judgment in their favor.

However, in opposition, plaintiff raises triable issues of fact regarding defendants'
assertions as to the existence of probable cause. Indeed, contrary to defendants' assertions, plaintiff
argues that the checkpoint in question lacked a systematic and nonarbitrary process. Plaintiff
highlights that Sergeant Lewis was equivocal during his EBT about the frequency and pattern of
motorcycle stops, as he mentioned a varying range of stops during the checkpoint without recalling
any established system or pattern. Plaintiff further underscores that Officer Rodriguez testified that
officers were directed to stop every single motorcycle, irrespective of visible infractions, revealing
a lack of discernment in the stopping criteria. Likewise, plaintiff notes further discrepancies
evidenced by that Officer Nickey's testimony that motorcycles were passing the checkpoint
without being stopped, further underscoring the absence of a coherent and uniform approach. This
divergence raises material questions of fact concerning the checkpoint's propriety, and defendants'
assertions that the stop and detention of plaintiff were conducted in a nonarbitrary and systematic
manner. Recognizing, as this court observed above, that "issue finding, not issue determination, is
the key to summary judgment" (Rose, 259 AD2d 258, supra) denial of defendants' application for
dismissal of plaintiff's federal false arrest and false imprisonment claims is warranted. 1

Likewise, all federal false arrest and false imprisonment claims cannot be dismissed on
account qualified immunity as issues of fact exist with respect to the existence of "arguable
probable cause" (Carabello v. City of New York, 526 Fed. Appx. 129, 131 [2d Cir. 2013][ Under
federal law, to be entitled to qualified immunity on false arrest and false imprisonment claims, a
defendant police officer must only demonstrate "arguable probable cause"]).

C. Dismissal of Plaintiff's Excessive Force Claim

To establish a § 1983 claim for excessive force, a plaintiff must show that the force used
was excessive or unreasonable considering the circumstances (Lynch ex rel. Lynch v. City ofMt.
1
As previously mentioned, plaintiff's state false arrest and imprisonment claims have been dismissed as
time-barred.
159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 7 of 12
Motion No. 002

7 of 12
[* 7]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

Vernon, 567 F. Supp. 2d 459, 468 [S.D.N.Y 2008]). Reasonableness is measured using the
objective reasonableness standard under the Fourth Amendment (Graham v. Connor, 490 U.S.
386, 396-97 [1989]). Objectively, the plaintiff must establish that the deprivation alleged is,
"sufficiently serious," or "harmful enough," to reach constitutional dimensions (Wilson v. Seiter,
501 U.S. 294, 296 [1991]). Hence, a de minimis use of force will rarely suffice to state a
constitutional claim (Hudson v. McMillian, 503 U.S. 1, 9 [1992]). In determining whether the use
of force was reasonable, the trier of fact must allow for police officers' frequent need to make,
"split-second" judgments about how much force is necessary "in circumstances that are tense,
uncertain, and rapidly evolving" (Graham v. Connor, 490 U.S. 386, 396 [1989]).

Likewise, while a plaintiff may pursue constitutional causes of action against individual
state actors, a plaintiff may not hold a municipality liable pursuant to 42 U.S.C. § 1983 under a
theory of respondeat superior (see Monell v. New York City Dept. of Social Servs., 436 U.S. 658,
694 [1978]; Ricciuti v. NY.C. Transit Auth., 941 F.2d 119, 122 [2d Cir. 1991]). To "hold a
municipality liable under section 1983 for the conduct of employees below the policymaking level,
a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal
custom or policy" (Vargas v. City of New York, 105 AD3d 834, 837 [2d Dept 2013]).

In addition, to properly plead a § 1983 claim, a plaintiff must demonstrate that "[t]he
conduct at issue [was] committed by a person acting under color of state law, and that the conduct
deprived [the plaintiffs] of rights, privileges, or immunities secured by the Constitution or laws of
the United States" (Cornejo v. Bell, 592 F.3d 121, 127 [2d Cir. 2010]).

Here, plaintiff failed to rebut defendants' prima facie showing regarding the absence of the
use of excessive force by defendants. Indeed, recognizing the absence of any state law excessive
force claims, at oral argument before the court on February 13, 2024, plaintiff focused on asserting
a federal claim of excessive force to no avail. Indeed, to rebut defendants' prima facie showing,
plaintiff contended that any physical undertaking, even as small as an incidental tripping, would
suffice maintain the viability of an excessive force claim. Yet here, contrary to plaintiff's
assertions, the record supporting a federal excessive force claim is absent, as no fact-finder could
reasonably conclude that the actions undertaken by defendants were anything other than de
minimis. Notably, plaintiff also only testified that Sergeant Lewis was the officer who used force
against him by pushing plaintiff and lifting him up in the air with his arms behind his back.
Sergeant Lewis, however, is not being sued for excessive force as this court ordered in its decision
on plaintiff's motion to amend the caption to add Sergeant Lewis as a defendant that plaintiff's
claims against Sergeant Lewis were limited only to a federal cause of action for malicious
prosecution. It is undisputed based on the testimony and evidence that other defendants Officer
Nickey and Officer Rodriguez were not involved in the use of force against plaintiff. And regarding
Officer Meister, this court in its prior decision, like Sergeant Lewis, only allowed plaintiff to bring
a cause of action for § 1983 malicious prosecution. Therefore, none of the named defendants can
be held liable for excessive force under § 1983. As plaintiff's only claims as to excessive force
relate to a defendant that plaintiff does not have a claim against (Sergeant Lewis) for excessive
force, the claims are dismissed.

D. Dismissal of Plaintiff's Malicious Prosecution Claim

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 8 of 12
Motion No. 002

8 of 12
[* 8]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

To maintain a cause of action based on malicious prosecution, plaintiff must prove the
following elements: (1) the initiation of a criminal proceeding against the plaintiff, (2) the
termination of the criminal proceeding in favor of the plaintiff, (3) lack of probable cause, and (4)
malice (Colon v. City of New York, 60 NY2d 78 at 78 [1983]; Broughton v. State of New York, 37
NY2d 451, 457 [1975]). It is the plaintiff's burden to prove all these elements, and a failure to
prove any one of the elements is fatal to a malicious prosecution claim (see Hollender v. Trump
Village Co-op., Inc., 58 NY2d 420,461 [1983]). Further, "[i]n order to allege a cause of action for
malicious prosecution under§ 1983, [plaintiff] must assert, in addition to the elements of malicious
prosecution under state law, that there was a sufficient post-arraignment liberty restraint to
implicate the plaintiff's fourth amendment rights" (Rohman v. NY.C. TransitAuth., 215 F.3d 208,
215 [2d Cir. 2000]).

Here, for the reasons articulated above, issues of fact exist with respect to the issue of
probable cause. Notwithstanding, defendants have sufficiently shown the absence of actual malice,
and plaintiff has failed to present evidence to the contrary. Actual malice "[m]eans that the
defendant must have commenced the prior criminal proceeding due to a wrong or improper motive,
something other than a desire to see the ends of justice served" (Nardelli v. Stamberg, 44 NY2d
500, 502-503 [1978]). Actual malice has been described as "conscious falsity" (Munoz v. City of
New York, 18 NY2d 6, 9 [1966]). Here, plaintiff has not discovered and cannot offer any evidence
that defendants were compelled by a wrong or improper motive when they investigated and
arrested plaintiff. Indeed, nothing in plaintiff's testimony can be inferred to make a showing of
malice by the officers. Likewise, defendants have shown that they did not arrest plaintiff out of
dishonesty or with improper motives, and plaintiff has failed to rebut that.

At oral argument on February 13, 2024, plaintiff's counsel claimed that "malice" could be
inferred from the officers' "fabrication of the events." The court disagrees. Indeed, it is imperative
to recognize that the divergent perspectives oflaw enforcement officers involved in an incident do
not necessarily equate to a deliberate fabrication of events. As famously depicted in Akira
Kurosawa's cinematic masterpiece, Rashomon, the concept of multiple truths arising from distinct
vantage points is both timeless and universal. Just as the film's narrative unfolds through the lens
of various characters, each presenting their own version of the same event, law enforcement
officers, too, may perceive and recount incidents through their unique experiences, training, and
situational awareness. It is essential for this court to acknowledge the inherent subjectivity in
human observations and memory, and refrain from hastily characterizing conflicting accounts as
intentional falsehoods. Rather, a nuanced examination of the differing perspectives should be
undertaken, understanding that the truth may lie within the complex interplay of individual
perceptions rather than an outright fabrication. This approach ensures a fair and just adjudication,
upholding the principles of justice and the preservation of the rule of law.

Therefore, plaintiff's state and federal law claims for malicious prosecution are dismissed.

E. Dismissal of Plaintiff's Claims for Unlawful Stop and Search under§ 1983

Dismissal of plaintiff's claims for unlawful stop and search under § 1983 is denied, as
issues of fact have been raised to defendants' prima facie showing regarding whether the stop of

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 9 of 12
Motion No. 002

9 of 12
[* 9]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

plaintiff's motorcycle was pursuant to a lawful checkpoint and that the search, therefore, was
incident to a lawful arrest.

F. Dismissal of Plaintiff's "Monell" Claim

It is well-established that while a plaintiff may pursue constitutional causes of action
against individual state actors, a plaintiff may not hold a municipality liable pursuant to 42 U.S.C.
§ 1983 under a theory of respondeat superior (see Monell v. New York City Dept. of Social Servs.,
436 U.S. 658, 694 [1978]; Ricciuti v. NY.C. Transit Auth., 941 F.2d 119, 122 [2d Cir. 1991]). To
"hold a municipality liable under section 1983 for the conduct of employees below the
policymaking level, a plaintiff must show that the violation of his or her constitutional rights
resulted from a municipal custom or policy" (Vargas v. City ofNew York, 105 AD3d 834, 837 [2d
Dept 2013]).

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the United States Supreme Court clarified the
standard to be used in determining the sufficiency of complaints in actions alleging an
unconstitutional governmental policy. The Court established a two-pronged approach for courts
deciding a motion to dismiss. First, the courts must "identify pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth" (id. at 679). Second, if the
complaint contains "well-pleaded factual allegations," then, and only then, should the court
"assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief' (id.).

In the present case, plaintiffs grievance articulates solely general and conclusory assertions
asserting a transgression of constitutional rights, attributing it to the City's alleged inadequacy in
training and overseeing its law enforcement officers, coupled with an asserted omission to establish
and enforce lawful policies. These sweeping legal contentions align closely with the type of
abstract formulations disapproved by the United States Supreme Court in Iqbal. Consequently, this
court is compelled to dismiss plaintiffs "Monell" claim, as it falls short of adhering to the stringent
pleading mandates delineated in the Iqbal precedent.

G. Dismissal of Plaintiff's Negligent Hiring, Training, and Retention Claim

Where an employee was acting within the scope of his employment at the time of the
incident, potentially rendering the employer liable for damages caused by the employee under a
theory ofrespondeat superior, no claim may proceed against the employer for negligent hiring and
retention (see Karoon v. New York City Tr. Auth., 241 AD2d 323 [1st Dept 1997]). Here, defendants,
in their response to the amended complaint, underscored that the designated defendant officers
were engaged within the bounds of their official duties at the time of plaintiffs apprehension. This
acknowledgment, unchallenged by plaintiff, necessitates the dismissal of the causes of action
asserting negligent hiring and retention. Indeed, at oral argument before the court on February 13,
2024, plaintiff's counsel conceded that plaintiff does not have a viable claim premised on negligent
hiring and retention.

H. Dismissal of Plaintiff's John and Jane Doe Officer Claims

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 10 of 12
Motion No. 002

10 of 12
[* 10]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

Ultimately, plaintiffs assertions against the unidentified individuals denominated as JOHN
AND JANE DOE OFFICERS are foreclosed, as these claims lack the requisite specificity to
delineate any particular defendant. The inadequacy lies in the failure to articulate characteristics
enabling an individual defendant, upon perusal of the complaint alone, to ascertain that they are
indeed the intended party concealed under the generic appellation of JOHN AND JANE DOE
OFFICERS.

Notwithstanding the prov1s10n accorded by CPLR § 1024 for the initiation of legal
proceedings against an unidentified entity by disclosing the known aspects of its identity, such
commencement is contingent upon the summons and complaint vividly portraying the unknown
party to the extent that a cursory review thereof would alert the implicated "John Doe" to their
status, a principle underscored in Bumpus v. New York City Tr. Auth., 66 AD3d 26, 29 (2d Dept
2009).

Furthermore, pursuant to the dictates of CPLR § 306-b, plaintiff bore the onus of
accomplishing service of process upon the JOHN AND JANE DOE OFFICERS within one
hundred twenty (120) days from the initiation of the present action. Unfortunately, plaintiff faltered
in meeting this mandated timeframe, neglecting to effectuate service within the prescribed period
or thereafter. Consequently, the entirety of plaintiffs summons and complaint, including the
amended summons and complaint, targeting all JOHN AND JANE DOE OFFICERS, stands
dismissed.

I. Unchallenged Claims

Finally, the court acknowledges that plaintiff has failed to oppose defendants' motion on
several grounds, namely: 1.) pursuant to CPLR § 3211, seeking the dismissal of all state law causes
of action, except malicious prosecution, as time-barred under GML § 50-E and CPLR § 217-A;
pursuant to CPLR § 3212 and§ 321 l(a)(7), requesting summary judgment and/or the dismissal of
plaintiff's 42 U.S.C § 1983 ("Monell") claim against the City, either for failure to state a claim or,
alternatively, for an order bifurcating these claims at the time of trial; 3.) pursuant to CPLR §
3211 (a)(7) and § 3212, seeking the dismissal of any negligent hiring, training, and retention claims,
asserting that the named defendants were acting within the scope of their employment; 4.) pursuant
to CPLR §§ 3125(c), 1024, and§ 306(b), aiming to dismiss plaintiff's complaint in its entirety as
against the JOHN AND JANE DOE officers; and 5.) pursuant to CPLR § 321 l(a)(7), seeking the
dismissal of all other causes of action as insufficiently pled.

Consequently, in addition to the foregoing reasons proffered, plaintiffs failure to respond
to these claims necessitates dismissal (Josephson LLC v Column Fin .. Inc., 94 AD3d 479 [1st Dept.
2012]). Accordingly, it is hereby

ORDERED that defendants' motion is granted to the extent that plaintiff's state law claims,
not including malicious prosecution, are dismissed as untimely and time-barred by the statute of
limitations; and it is further

ORDERED that defendants' motion is denied to the extent that issues of fact exist with
respect to plaintiff's federal false arrest and false imprisonment claims; and it is further

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 11 of 12
Motion No. 002

11 of 12
[* 11]
INDEX NO. 159452/2017
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/13/2024

ORDERED that defendants' motion is granted to the extent that plaintiff's excessive force
claims are dismissed in their entirety; and it is further

ORDERED that defendants' motion is granted to the extent that plaintiff's state and federal
law claims for malicious prosecution are dismissed in their entirety; and it is further

ORDERED that defendants' motion is denied to the extent that dismissal of plaintiff's
claims for unlawful stop and search under § 1983 is denied, as issues of fact have been raised to
defendants' prima facie showing regarding whether the stop of plaintiff's motorcycle was pursuant
to a lawful checkpoint and that the search, therefore, was incident to a lawful arrest; and it is further

ORDERED that defendants' motion is granted to the extent that plaintiff's "Monell" claim
is dismissed in its entirety; and it is further

ORDERED that defendants' motion is granted to the extent that plaintiff negligent hiring,
training, and retention claims are dismissed in their entirety; and it is further

ORDERED that defendants' motion is granted to the extent that plaintiff's claims against
John and Jane Doe Officers are dismissed in their entirety; and it is further

ORDERED that defendants' motion is granted to the extent that the remammg
unchallenged claims in defendants' motion, are dismissed.

This constitutes the decision and order of the court.

2/13/2024
DATE HASAA. KIN

~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

159452/2017 CARTAGENA, EDWIN vs. CITY OF NEW YORK Page 12 of 12
Motion No. 002

12 of 12
[* 12]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9942019. Public record. Not legal advice.