Eposito v. City of New York et al

Filing 78

MEMORANDUM and ORDER: Defendants motion 67 is DENIED for the reasons stated in the attached memorandum and order. Ordered by Judge Frederic Block on 1/6/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------x
MAYLINE ESPOSITO,
Plaintiff,
-againstCITY OF NEW YORK, GERARD
DELPRETE, Individually,
JOHN RYAN, Individually, MICHELLE
ORTIZ, Individually, MEGAN
CARROLL, Individually, ARTHUR
TRUSCELLI, Individually, NICHOLAS
VELEZ, Individually, JOHN BROOKS,
Individually, DAVID LUPPINO,
Individually,

MEMORANDUM AND ORDER
15-0278 (FB)

Defendants.
--------------------------------------------------x
Appearances
For the Plaintiff:
BRETT H. KLEIN
Brett H. Klein, Esq., PLLC
305 Broadway, Suite 600
New York, New York 10007

For the Defendant:
ZACHARY W. CARTER
SUSAN P. SCHARFSTEIN
Corporation Counsel of the
City of New York
100 Church Street
New York, New York 10007

BLOCK, Senior District Judge:
Plaintiff Mayline Esposito (“Esposito”) brings this case against defendants Gerard
Delprete (“Delprete”), John Ryan (“Ryan”), and the City of New York (“City”),1 which

1

Defendants Michelle Ortiz, Megan Carroll, Arthur Truscelli, Nicholas Velez, John Brooks, and
David Luppino have been dismissed from this case in the course of litigation. As Esposito
acknowledged in a November 22, 2016 letter to the Court, the only remaining defendants are Gerard
Delprete, John Ryan, and the City.

arises from an October 2013 incident in which Esposito was allegedly falsely arrested,
subjected to excessive force, strip searched, and subsequently subjected to malicious
prosecution. Defendants now move to dismiss certain claims and for partial summary
judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, respectively.
Viewing the allegations and evidence in the light most favorable to Esposito, the
Court finds facially plausible, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and subject
to “genuine issue of fact,” Eastman Kodak v. Image Tech. Servs., 504 U.S. 451, 483-84
(1992), Esposito’s federal and New York state law false arrest claims against Ryan, federal2
malicious prosecution claim against Delprete, federal excessive force claim against Ryan,
state battery and related failure to intervene claims against Ryan, Delprete and the City, and
federal3 strip search and related failure to intervene claims claim against Ryan and Delprete.
Defendants’ motion is therefore DENIED.
SO ORDERED
_/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 6, 2016

2

Esposito withdrew her state malicious prosecution claim against Delprete and the City in her
opposition to defendants’ motion to dismiss and for partial summary judgment.
3

In her November 22, 2016 letter to the Court enumerating the remaining claims in anticipation
of trial, Esposito listed a state unreasonable strip search claim. However, as defendants point out
in the present motion, Esposito did not plead the state law claim in her complaint. She did not
respond to this point in her opposition to the motion to dismiss. Thus, a state unreasonable strip
search claim will not proceed to trial.
2