Brim v. The City of New York et al
ORDER denying 48 Motion for Summary Judgment. See attached. Ordered by Judge Sterling Johnson, Jr on 6/4/2015. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
13 CV 1082 (SJ) (RER)
THE CITY OF NEW YORK,
P.O. TIMOTHY REILLY,
P.O. RALPH GIORDANO,
SGT. SALVATORE MANNINO,
MARSHALL SCOTT BLUTH
733 Third Avenue
New York, NY 10017
Attorney for Plaintiff
COHEN & FITCH
New York, NY 10279
Attorney for Plaintiff
Corporation Counsel of the City
of New York
100 Church Street, Room 2-144
New York, NY 10007
Joshua J. Lax
Attorneys for Defendant
JOHNSON, Senior District Judge:
On the afternoon of April 30, 2012, plaintiff Karen Brim (“Plaintiff” or
“Brim”) suffered a tragic fall that broke her leg and led to surgery and a 17-day
period of hospitalization. The fall took place at 927 Utica Avenue, a multi-family
dwelling owned by Brim.
At the time, Brim was in a common area of the
building, to wit: a landing within the staircase between the ground and second
Also in that area were eight other individuals:
Brim’s son, Dontay
Blackwood (“Blackwood”), Police Officer Timothy Reilly (“Reilly”), Police
Officer Ralph Giordano (“Giordano”), Sergeant Salvatore Mannino (“Mannino”),
and four men held on suspicion of trespassing just moments before, Brenado
Simpson, Clifton Bailey, Robean Romans and Distephano Destin (the “arrestees”).
Plaintiff claims that the arrestees were lawfully on her premises when the officers,
without a warrant, took them into custody and that an altercation ensued between
the officers and Blackwood. During this altercation, Plaintiff was allegedly thrown
to the floor, and then arrested and taken to Kings County Hospital Center. On
March 12, 2014, she filed the Second Amended Complaint in this Court alleging
claims pursuant to 42 U.S.C. § 1983 and related state tort claims. The City moves
for summary judgment. Based on the submissions of the parties, the oral argument
held before this Court on May 26, 2015, and for the reasons stated below, the
motion is denied.
Reilly, Giordano and Mannino were on patrol in the area of Utica and
Snyder Avenues when they allegedly saw four black men traveling between the
roofs of a series of connected buildings located at 921, 923, 925 and 927 Utica
Avenue. The officers entered either 921 Utica Avenue or 923 Utica Avenue to
investigate. When they reached the roof, they observed the four men enter 927
Utica through its rooftop door.
They followed the men in and asked for
identification. Not all of the men had identification and none of the men lived in the
building. The men were handcuffed and held in a single-file line as they walked
down the stairs of 927, a three-story building.
Plaintiff was in the common area stairwell between the ground and second
floors, either sweeping or mopping, when she observed the arrestees. She heard
one of the arrestees call Blackwood’s name and she in turn called Blackwood, who
was on his way out of the building at that time but turned around. Plaintiff testified
that she stood on a landing two steps above the ground floor, and that Blackwood
walked above her onto one of the remaining steps leading to the second floor.
However, Blackwood testified that they both stood on the landing. The officers
and the arrestees came down the stairs past Plaintiff and Blackwood and lined the
arrestees up against the hallway wall. Words were exchanged between Plaintiff,
Blackwood, and the officers. Specifically, Blackwood inquired as to why the men
were being held, Plaintiff offered to prove her ownership of the building, Plaintiff
disputed that the men were trespassing, and Officer Reilly asked them to clear the
way. Tempers then flared. At one point, Blackwood was told he would be arrested
if he did not move out of the way. Blackwood did not move. At that point, Officer
Reilly attempted to move either Plaintiff or Blackwood out of the way. According
to Officer Reilly, Plaintiff moved between Reilly and Blackwood and swung the
broom (or mop) in the air towards him. Reilly then allegedly grabbed her and
pulled her out of the way, causing her to fall down the remaining two steps and
land on her knee.
However, according to Plaintiff, she was already situated
between Reilly and Blackwood and did not need to move between them.
According to Plaintiff, Reilly pushed her down the steps to the ground, fracturing
her tibial plateau, and arrested her.
And according to the arrest report, Plaintiff
struck Reilly in the head with her hand and “flail[ed] her arms and push[ed] back
while resisting” the ensuing arrest. She was charged with assault, obstructing
governmental administration, resisting arrest and disorderly conduct. Blackwood
was not arrested.
Plaintiff was transported to Kings County Hospital Center where she
underwent surgery and received doses of several painkillers over the course of her
stay. She was handcuffed to the hospital bed and monitored by a police officer at
all times. None of these officers are named as defendants.
On May 14, 2012, the hospital determined that Plaintiff was a “likely
discharge.” On May 15, 2012, a sergeant from the 67th Precinct was notified to
call the Clerk’s Office. On May 16, 2012, Plaintiff was arraigned in the hospital.
Plaintiff moved in the Supreme Court of Kings County to dismiss the
charges against her based on the delay in arraignment. The court denied the
motion, noting that she failed to argue that she was medically cleared for an earlier
Plaintiff later accepted an Adjournment in Contemplation of Dismissal of
It is well-settled that a party moving for summary judgment has the burden
of establishing that there exists no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ford v. Reynolds, 316
F.3d 351, 354 (2d Cir. 2003). Material facts are those that may affect the outcome
of the case. See Anderson, 477 U.S. at 248. An issue of fact is considered
“genuine” when a reasonable finder of fact could render a verdict in favor of the
non-moving party. Id.
In considering a summary judgment motion, “the court's responsibility is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried, while resolving ambiguities and drawing reasonable inferences
against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.
1986) (citing Anderson, 477 U.S. at 248). If the Court recognizes any material
issues of fact, summary judgment is improper, and the motion must be denied. See
Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).
If the moving party discharges its burden of proof under Rule 56(c), the
non-moving party must then “set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e). The non-moving party opposing a properly
supported motion for summary judgment “may not rest upon mere allegations or
denials of his pleading.” Anderson, 477 U.S. at 256. Indeed, “the mere existence of
some alleged factual dispute between the parties” alone will not defeat a properly
supported motion for summary judgment. Id. at 247–48. Rather, enough evidence
must favor the non-moving party's case such that a jury could return a verdict in its
favor. Id. at 248; see also Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219,
1224 (2d Cir. 1999) (“When no rational jury could find in favor of the nonmoving
party because the evidence to support its case is so slight, there is no genuine issue
of material fact and a grant of summary judgment is proper.”).
In this case, there are a handful of facts in dispute that prevent summary
judgment of Plaintiff’s claims.
Plaintiff’s First Cause of Action
When a probable cause determination (in this case, an arraignment) is not made
within 48 hours, the government must show cause why the delay should not be
considered unreasonable. See County of Riverside v. McLaughlin, 500 U.S. 44, 57
In this case, the City claims that Plaintiff’s medical condition justified the
delay. The City points to the fact that Plaintiff was on various narcotic medications
while hospitalized and was only cleared for release on May 14, 2012, at which
point the City arranged a bedside arraignment within 48 hours. Plaintiff claims she
was “ready, willing, and able” to be arraigned the entire time. This Court cannot
say as a matter of law whether Plaintiff was medically incapacitated during any
portion of those 17 days and therefore, summary judgment cannot be granted on
B. Plaintiff’s Fourth, Fifth, Sixth, Seventh, Eighth, Eleventh, Twelfth,
Thirteenth, and Fifteenth Causes of Action
The he-said-she-said nature of this case precludes a finding in favor of the City
on Plaintiff’s claims that she was falsely arrested and imprisoned, denied the right
to a fair trial, subject to excessive and unnecessary force, suffered an intentional
infliction of emotional distress and that the defendant officers failed to intercede on
As noted, supra, there is a dispute as to where Plaintiff and Blackwood were
standing. Blackwood testified that he was on the landing with Plaintiff but Plaintiff
testified that he was above her. Therefore, it cannot be said whether or not Plaintiff
moved during the altercation and inserted herself between Blackwood and Reilly,
as the City claims. Additionally, Plaintiff denies swinging anything at Reilly or
A factfinder must determine how these nine individuals were
arranged in a relatively small area and whether any individual’s movement was
intended to harm any other individual or posed a threat to any other individual.
Only then can it be said whether the arrest was supported by probable cause,
weather the force used was unnecessary or excessive, whether anyone held a duty
to intercede on Plaintiff’s behalf, whether the contents of the police report
documenting the incident were fabricated, and whether the conduct of the officers
was either reasonable or unreasonable such that qualified immunity should or
should not attach. See generally Jovanovic v. City of N.Y., 486 F. App’x 149, 152
(2d Cir. 2012) (finding that claims asserting a denial of right to fair trial turn on the
existence of fabricated evidence); Savino v. City of N.Y., 331 F.3d 63, 75 (2d Cir.
2003) (“To state a claim for false arrest under New York Law, a plaintiff must
show [inter alia] that the confinement was not otherwise privileged.”); Zarvis v.
Albany County, 75 F. App’x 837 (2d Cir. 2003) (trial court to determine “which
facts material to the qualified immunity defense must be presented to the jury to
determine its applicability”); O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)
(“A law enforcement officer has an affirmative duty to intercede on behalf of a
citizen whose constitutional rights are being violated in his presence by other
officers.”); Piper v. City of Elmira, 12 F. Supp. 3d 577, 589 (W.D.N.Y. 2014)
(denying summary judgment of excessive force claim where plaintiff was shoved
as officers moved through a crowd on her porch to arrest three people). Therefore,
summary judgment of these claims is denied.
C. Remaining Claims
The City’s remaining arguments have been considered and are without merit at
this stage. However, the City will be granted leave to renew these arguments at the
close of Plaintiff’s case.
For the foregoing reasons, summary judgment is denied.
Dated: June 4, 2015
Sterling Johnson, Jr., U.S.D.J.
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