Graham v. Quirk et al

Filing 390

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS: The R&R 373 is adopted in its entirety. The State Defendants' motion 333 is granted in full, and the City Defendants' motion 363 is granted in part and denied in part. The Court will hold a telephone status conference on August 9, 2023 at 2:30 p.m. to discuss preparations for trial on Graham's remaining claims. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 7/25/2023. (copy mailed). (AG)

Case 1:14-cv-05815-EK-LB Document 390 Filed 07/25/23 Page 1 of 4 PageID #: 3494

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JESSICA C. GRAHAM,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-5815 (EK)(LB)

P.O. VALERI MATTEO, P.O. FRANK
CALLAGHAN, P.O. DANIELLE SINGER,
P.O. STANISLAV ZUBYK, et al.,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
The Court has received Magistrate Judge Bloom’s Report
and Recommendation (R&R) dated August 5, 2022.

ECF No. 373.

Judge Bloom recommends that the State Defendants’ motion for
summary judgment should be granted in full, and that the City
Defendants’ motion for summary judgment should be granted in
part and denied in part. 1

Graham timely objected to the R&R,

1 The State Defendants are New York State Court officers Captain John
Bonanno, Sergeant Dominic Botta, Sergeant Giuseppe Sicilia, and Officers
Stephen Toscanini and Dominick Lepore. The City Defendants are New York
Police Department officers Valeri Matteo, Frank Callaghan, Detective Robert
Reed, George Martine, Danielle Singer, Yuly DelaPena, Detective George
Bonner, Anthony Ferretti (retired), Robert Adams, Stanislav Zubyk, Jason
Portee, Sergeant Thomas Sabbio, Lieutenant Steven Nichols, Deputy Inspector
Terence Hurson, Sergeant Edward Leisengang, Brian Johnson, Richard Ocasio,
Robert Talatala, Steven Cosentino, Derek DeHorta, Sean McHugh, Alfred
Lobaito, Sergeant Matthew Muscarello, Detective Patricia O’Brein, Detective
Henry Rivero, Captain Ronald Zedalis, Detective Paul Fazio, Detective Paul
Mellone (retired), Detective Genee Parker, Sergeant Nicholas Gravino,
Lieutenant Sean Patterson, Detective Edward Waszak (retired), Detective Vlad
Green, Detective Michael Langan, Detective James Coll (retired), Detective
Michael O’Neill, Nicholas Gentile, Detective Matthew Brander, Andrew Leiper,
Detective Nicholas Scianna (retired), and emergency medical technicians
Giuseppe Caruso and James Howe.

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contending that this case should proceed to trial on all claims.
Pl. Objs. 5, ECF No. 376.

With respect to the claims that Judge

Bloom recommends dismissing, Graham argues that the defendants
have not met their burden of “demonstrating that no material
issue of fact remains for trial.”

Id. at 4.

In support of this

argument, Graham largely repeats certain allegations from the
second amended complaint and her deposition testimony relating
to the defendants’ purported violations of her rights during the
various incidents at issue.

See id. at 1-5.

A district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1).

The Court reviews de

novo those portions of the R&R to which a party has specifically
objected.

Id.; Fed. R. Civ. P. 72(b)(2)-(3); see also Kruger v.

Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y.
2013) (“A proper objection is one that identifies the specific
portions of the R&R that the objector asserts are erroneous and
provides a basis for this assertion.”), aff’d, 578 F. App’x 51
(2d Cir. 2014).

When considering the objections of a pro se

litigant, the Court interprets those objections to raise the
strongest arguments that they suggest.

See Spaulding v. N.Y.C.

Dep’t of Educ., 407 F. Supp. 3d 143, 144 (E.D.N.Y. 2017).

As to

the portions of the R&R to which no party has objected, the
Court reviews for clear error on the face of the record.
2

See

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Advisory Comm. Notes to Fed. R. Civ. P. 72(b); accord State Farm
Mut. Auto. Ins. Co. v. Grafman, 968 F. Supp. 2d 480, 481
(E.D.N.Y. 2013).
Having conducted a de novo review of the portions of
the R&R to which Graham has objected, and a review of the
remaining portions for clear error, I adopt the R&R in its
entirety.

Simply put, none of the facts that Ms. Graham

marshals in her objections dictate a different conclusion than
the R&R recommended.

Thus, the State Defendants’ motion is

granted in full, and the City Defendants’ motion is granted in
part and denied in part.

The City Defendants’ motion is granted

on the following claims: the failure-to-intervene claim against
Detectives Reed and Bonner regarding the October 4, 2013
incident; the false arrest claim against Officers Ferretti and
Adams and the excessive force claim against Officer Delapena
regarding the April 9, 2014 incident; the false arrest and
excessive force claims against Officers Ferretti and Adams and
other unidentified NYPD officers regarding the March 20, 2015
incident; and the false arrest and excessive force claims
against Officer Hurson and other unidentified NYPD officers
regarding the August 12, 2015 incident.

The City Defendants’

motion is denied as to all other claims.
Accordingly, all defendants other than Officers
Callaghan, Matteo, Portee, Singer, and Zubyk are dismissed from
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this case.

The Clerk of Court is respectfully directed to

change the case caption to Graham v. P.O. Matteo, et al., as set
forth herein.
The Court will hold a telephone status conference on
August 9, 2023 at 2:30 p.m. to discuss preparations for trial on
Graham’s remaining claims.

The parties are directed to call

888-808-6929 five minutes before the scheduled start of the
conference and to use access code 564-7824.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

July 25, 2023
Brooklyn, New York

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