DaCosta v. City of New York et al
Filing
112
MEMORANDUM AND ORDER DENYING MOTION FOR RECONSIDERATION of the court's November 8, 2017 Order, ECF No. 84 . The December 12, 2017 Order, ECF No. 93 , is confirmed. Ordered by Judge Jack B. Weinstein on 1/30/2018. (Attachments: # 1 Exhibit A) (Barrett, C) (Main Document 112 replaced on 1/30/2018) (Barrett, C).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MAXIE DACOSTA,
MEMORANDUM AND ORDER DENYING
MOTION FOR RECONSIDERATION
Plaintiff,
15-CV-5174
- against-
DETECTIVE FORTUNATO TRANCHINA,
Shield #509, individually and in his official
capacity
Defendant.
JACK B. WEINSTEIN, Senior United States District Judge
Maxie Dacosta
Kim Richman
Clark A. Binkley
The Richman Law Group
81 Prospect Street
Brooklyn, NY 11201
(212)687-8291
Fax: (718)228-8522
krichman@richmanlawgroup.com
Detective Fortunato
Tranchina
Kavin Suresh Thadani
New York City Law Department
Special Federal Litigation Division
100 Church Street
New York, NY 10007
212-356-3534
Fax: 212-356-3509
kthadani@law.nyc.gov
1
Contents
I. Introduction ............................................................................................................................. 2
II. Factual Background ................................................................................................................. 3
III. Summary of Challenged Opinions .................................................................. ~ ....................... 8
IV. Standard of Review on Motions for Reconsideration ............................................................. 9
V. Relation Back .......................................................................................................................... 9
A.New York CPLR 203 ............................................................................................................ 9
B. Federal Rule 15(c)(1 )(C) .................................................................................................... 11
C. Ethics of Government Counsel .......................................................................................... 14
VI. December 12, 201 7 Summary Judgment Order .................................................................... 15
A. Misleading Evidence Before the Grand Jury ..................................................................... 15
B. Applicability of Order ........................................................................................................ 17
VII. Manifest Injustice ............................................................................................................... 19
VIII. Conclusion .......................................................................................................................... 20
I.
Introduction
Defendant moves to reconsider the November 8, 2017 Order, ECF No. 84, based partly
on ethical considerations; granted to plaintiff was leave to amend the complaint adding Detective
Tranchina, as the new defendant, eliminating Detective Shapiro as the original defendant, and
holding that the amended pleading relates back to the time of filing of the original complaint.
Tranchina is deemed to have challenged the December 12, 2017 Order, ECF No. 92,
predicated on ethical grounds, that denied dismissal of the instant civil suit because the grand
jury that indicted the defendant, now plaintiff, was misled.
The defendant's motions are denied. The facts are detailed in the court's original orders.
See DaCosta v. City ofNew York, No. 15-CV-5174, 2017 WL 5176409, -- F. Supp. 3d-(E.D.N.Y. Nov. 8, 2017); Dacosta v. Tranchina, No. 15-CV-5174, 2017 WL 6372710, -- F.
Supp. 3d -- (E.D.N.Y. Dec. 12, 2017). For the reader's convenience, a reduced version of the
facts set forth in the two orders are recounted below.
2
II.
Factual Background
Plaintiff was accused of three crimes in 2007: homicide, escape, and robbery. He was
acquitted by a jury of the homicide and escape. The separate robbery charge was then dismissed.
The present civil suit is based on the theory that the police lacked probable cause to bring
charges and prosecute plaintiff for the robbery.
The homicide and escape charges are unrelated to the robbery. Oct. 23, 2017 Hr'g Tr.
12:12-20. Plaintiff was accused of committing a murder on July 28, 2007, id. 16:12-20, and it
was alleged that while in custody for the homicide, under the supervision of Detective David
Shapiro, he escaped. Id. 9:25-10:6.
The robbery charge that forms the basis of the present civil suit is based on the following
facts: on the evening of July 28, 2007, an armed man entered a retail sports store, threatened and
assaulted employees, and forcibly removed $4,600 from a cash register. Plaintiffs Response to
Defendants' Statement Pursuant to Local Rule 56.1 ("56.1 Stmt.") at if 1, ECF No. 65.
Shortly after the robbery, three of those present, Mohammad Sarwar, Anita Saunders and
James Cadawan, viewed at the 106th Precinct photographs matching their description of the
perpetrator. See Complaint Follow Up Report, ECF No. 67, Exh. C, Aug. 2, 2007. The
witnesses did not identify anyone. See Id.
Mr. Sarwar then provided the police with videos of the robbery. See Complaint Follow
Up Report, ECF No. 67, Exh. C, July 29. They showed the perpetrator. Id.
On August 29, 2007, Mr. Sarwar was watching the news on television; he saw a picture
of plaintiff on a wanted poster related to the homicide and escape. 56.1 Stmt. at iii! 2, 3.
Believing that plaintiff depicted in the wanted poster was the person who robbed the store the
previous month, he contacted the 106th Precinct Detective Squad. Id. A day later, he met with
3
Detective Tranchina, the detective responsible for investigating the robbery (not the homicide or
escape alluded to in the wanted poster being investigated by Detective Shapiro). Id
at~~
4-5.
Mr. Sarwar was shown a photo array at the precinct by Tranchina and again identified plaintiff as
the robber. Id.
at~
7. The photo array contained a photograph from the wanted poster that Mr.
Sarwar had seen on television the day earlier. Id.
Two other eyewitness-victims of the robbery, Ms. Saunders and Mr. Cadawan, were
present at the showing. Id. They had seen the same wanted poster that Mr. Sarwar saw the prior
day, but were uncertain about whether plaintiff, depicted in the photo, was the perpetrator of the
robbery. Id.
On March 11, 2008, Mr. Sarwar, Ms. Saunders, and Mr. Cadawan viewed a lineup. Id. at
~
8. Mr. Sarwar identified plaintiff as the guilty person. Id. Ms. Saunders and Mr. Cadawan did
not identify plaintiff. Id. Ms. Saunders identified a different person with 80% confidence; Mr.
Cadawan told the police that he did not recognize any of the people in the lineup. Id.
On April 24, 2008, Detective Tranchina arrested plaintiff-who was already in jail on the
homicide and escape charges-and signed a criminal court complaint charging him with two
counts of Robbery in the First Degree. Id
at~~
9, 11.
A grand jury was convened on May 14, 2008 to determine whether there was probable
cause to indict plaintiff on robbery charges. See Grand Jury Hearing Transcript, People v.
Dacosta, Ind. No. 1210-08 (May 14, 2008) ("Grand Jury Hr'g Tr."). A December 12, 2017
Order unsealed the potions of these minutes recounted in the present memorandum and order.
Three witnesses testified before the grand jury-Anita Saunders, Mohammad Sarwar,
and Detective Tranchina. Id.
4
Ms. Saunders testified to the basics facts of the robbery. Id. She also testified that the
perpetrator of the robbery pulled his "shirt above his nose [],so his lower face was partially
covered," but that he was not wearing a mask. Id. 7:15-23. She was not asked to inform the
grand jury that in a lineup she identified a "filler"-not plaintiff-with 80% confidence, as the
robbery perpetrator. See Complaint Follow Up Report, ECF No. 67, Exh. C, Mar. 11, 2017.
Mr. Sarwar testified before the grand jury to his experience during the robbery. He, too,
had viewed the perpetrator's face from the nose up. Grand Jury Hr'g Tr. 16:1-25. At one point,
while there was a gun to Mr. Sarwar's head, the perpetrator dropped his mask revealing his entire
face. Id. 18:13-19:12. Mr. Sarwar was focused on the perpetrator's gun, which obstructed his
view of the robber's face.
Mr. Sarwar testified to seeing the perpetrator in a "video." Id. 20:19-21. This seemed to
be a reference to the video Mr. Sarwar brought to the attention of police that showed a person he
believed to be the perpetrator who had entered the store the day before the robbery. See
Complaint Follow Up Report, ECF No. 67, Exh. C, July 29. About his identifications of
plaintiff, Mr. Sarwar testified before the grand jury that while watching the news, he saw a
picture of a person who he believed to be the robber. Grand Jury Hr' g Tr. 21 :2-9. He brought
this to the attention of Detective Tranchina. Id. 21: 19-21.
Mr. Sarwar' s final portion of testimony related to his identification of plaintiff at the
lineup. He testified:
[Prosecutor]: When you looked at that lineup did you recognize any of the people
one through five or six?
[Mr. Sarwar]: I pick number two. That was the number I picked.
[Prosecutor]: Number two that you picked did you recognize that person?
[Mr. Sarwar]: Yeah, it was.
5
[Prosecutor]: Where was the person from?
[Mr. Sarwar]: From the picture in the -- from the robbery.
[Prosecutor]: Did it appear to be the same person that robbed the store?
[Mr. Sarwar]: Yeah.
[Prosecutor]: Did it appear to be the same person you saw in the picture on New
York 1?
[Mr. Sarwar]: The eyes definitely. Yes.
Id 22:18-23:6 (emphasis added). Note that Mr. Sarwar first said "[f]rom the picture" and then
"corrected" himself to say it was from his recollection of the robbery. Mr. Sarwar did not
present testimony about his identification of plaintiff from the photo array. See Complaint
Follow Up Report, ECF No. 67, Exh. C, Aug. 31, 2017.
Detective Tranchina was the final witness before the grand jury. He explained that Mr.
Sarwar identified plaintiff in the lineup. Grand Jury Hr' g Tr. 25: 11-19. What he did not tell the
grand jury was that Ms. Saunders viewed the same lineup and identified a different individual,
that another eyewitness, James Cadawan, could not identify any individual, and that the picture
seen on television in the wanted poster was of a suspect in the homicide and escape, not in the
robbery. See Complaint Follow Up Report, ECF No. 67, Exh. C, Mar. 11, 2017.
Plaintiff was indicted on May 15, 2008 by the grand jury for one count of Robbery in the
First Degree, one count of Robbery in the Second Degree, two counts of Assault in the Second
Degree and one count of Criminal Possession of a Weapon (in the robbery) in the Fourth Degree.
56.1 Stmt.
at~
13. On September 3, 2008, a criminal court judge determined that the indictment
was not defective. Id.
at~~
14-15.
6
After spending several years in jail on the robbery, homicide, and escape charges,
plaintiff was tried and acquitted of the homicide and escape. Am. Compl.
That same day he was released from jail on his own recognizance. Id.
September 6, 2012, the robbery charges were dismissed. Id.
at~
at~
~
22, ECF No. 20.
23. A month later, on
13.
A memorandum written by the Queens County District Attorney's Office dated July 31,
2012, explained that the robbery charges were dropped because the videotape of the incidentavailable to the police before the grand jury was convened-showed a person other than the
plaintiff to be the robber:
There is video surveillance of the robbery from which still photos of the perpetrator
were developed. The perpetrator does not appear to be the defendant based upon a
comparison to his arrest photo of 4-24-06. I also recently tried defendant's murder
case and observed him extensively. He does NOT appear to be the same person in
the video surveillance or still photos.
Exhibit A at 4 (emphasis in original).
Detective Tranchina was the lead detective on the robbery case, which forms the basis of
the instant civil lawsuit. Plaintiff and his counsel were under the mistaken notion that Detective
Shapiro, the officer who was involved in the murder investigation, and from whose custody
plaintiff allegedly escaped, was in charge of the robbery investigation. See Original Compl.,
ECF No. 1. Plaintiff filed suit on this assumption, and named as individual defendants only
Detective Shapiro along with twenty John and Jane Doe officers. Id.
Plaintiff believed that Detective Shapiro had orchestrated his arrest for the robbery as
payback for his alleged escape. Oct. 23, 2017 Hr'g. Tr. 9:16-10:13. In discovery, plaintiff found
no evidence that this theory was true, but learned of the involvement of Detective Tranchina only
in the robbery prosecution. Id.
7
III.
Summary of Challenged Opinions
In two separate opinions, this court stated the conclusions now challenged by the present
defendant. In the first opinion, dated November 8, 2017: (1) plaintiff was granted leave to
amend his complaint to name Detective Tranchina rather than Detective Shapiro as defendant,
and (2) the amended pleading was held to relate back to the filing of the original complaint,
defeating the statute oflimitations defense. Noted was the defendant's dilatory tactics and lack
of burden on the new defendant.
The relation back holding was based on three independent legal conclusions: first, the
Corporation Counsel, a New York City government entity, had an ethical obligation to inform
plaintiff that he had sued the wrong officer. Had the Corporation Counsel fulfilled this
obligation, the statute of limitations would not have been in issue. Second, under New York
State's CPLR 203, applicable through Federal Rule of Civil Procedure 15(c)(l)(A), the amended
pleading related back. Third, the amended pleading related back under Federal Rule of Civil
Procedure 15(c)(l)(C).
The second opinion, issued on December 12, 2017, addressed substantive claims.
Defendant moved for summary judgment on plaintiffs malicious prosecution claim arguing
primarily that (1) there was probable cause to initiate the prosecution against plaintiff, and (2)
plaintiff could not overcome the presumption of probable cause created by a grand jury
indictment. The court rejected both of these arguments. The sole evidence linking plaintiff to
the robbery was one eyewitness identification. The eyewitness identification was of dubious
value because (1) the identification had substantial indicia of unreliability, (2) the two other
eyewitnesses of the crime failed to identify plaintiff as the robber, (3) the eyewitness was shown
a suggestive photo array, and (4) the detective did not consult a video from the store, which
8
would have demonstrated that a person other than plaintiff was the robber. The grand jury was
not informed of the poor nature of the identification or of the videotape evidence. A civil petty
jury could conclude that Detective Tranchina colluded to mislead the grand jury.
IV.
Standard of Review on Motions for Reconsideration
"[R]econsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked-matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
V.
Relation Back
Defendant makes two arguments supporting his motion for reconsideration of the relation
back order. He first contends that the Corporation Counsel could not have alerted plaintiff or
Detective Tranchina about the fact that the wrong detective was named because plaintiffs
criminal case file was sealed by operation of law, and plaintiff delayed signing a release to
unseal the file. Defendant also argues that plaintiff did not make a "mistake" in failing to name
Detective Tranchina in the original complaint because plaintiffs criminal defense lawyer was
aware that Detective Tranchina was involved in the robbery case in April 2008.
These two points that defendant claims the court overlooked are not specifically tethered
to the three independent holdings on relations back. Purported new facts do not alter the court's
conclusion.
A.
New York CPLR 203
Defendant argues that plaintiff "was made aware of [the proper defendant's] identity,
while the criminal [robbery] case was pending." Def.'s Mem. in Support of Mot. for
Reconsideration ("Mot. for Reconsideration") at 11, ECF No. 87, Ex. 9. He argues that "either
9
[plaintiff], or his attorneys, or both, purposely chose not to name him as a defendant" in the
original complaint. Id. at 11-12.
This court "conclude[d] that the New York Court of Appeals ... would hold that the
diligence of the plaintiff is not an aspect of the 'mistake' prong [of CPLR 203], and suing 'John
Doe' when a defendant's identity is unknown is a mistake for purposes of the relation back
doctrine of CPLR 203." Nov. 8, 2017 Order at 27-28. Even if Detective Tranchina should not
have been substituted for Detective Shapiro, as defendant seemed to suggest, CPLR 203 would
still be applicable.
Under the law of the case, if plaintiff deliberately omitted Detective Tranchina, the
proper defendant, to gain a tactical advantage, a relation back would not have been granted. See
id. at 19; see also Buran v. Coupal, 661N.E.2d978, 983 (N.Y. 1995) ("This is not to say,
however, that removing the excusability requirement from the third prong would prevent a court
from refusing to apply the doctrine in cases where the plaintiff omitted a defendant in order to
obtain a tactical advantage in the litigation. When a plaintiff intentionally decides not to assert
a claim against a party known to be potentially liable, there has been no mistake and the plaintiff
should not be given a second opportunity to assert that claim after the limitations period has
expired.") (emphasis added). In the instant case, no tactical advantage could possibly accrue to
plaintiff from suing the wrong officer.
What would-or could-the reason be for intentionally omitting the proper initiating
officer from a malicious prosecution suit? Cf Nov. 8, 2017 Order at 50 ("From the 50-h Hearing
it is clear that Plaintiff raised the same claims now brought in this lawsuit and did not know the
identity of the officer who investigated the robbery for which he was arrested or the precinct in
which the officer worked.") (emphasis added).
10
Under CPLR 203, applicable through Federal Rule of Civil Procedure 15(c)(l)(A), the
Second Amended Complaint against the proper defendant police officer relates back to the filing
of the original complaint. See Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) ("[U]nder
Rule 15(c)(l)(A), we must determine if New York state law provides a 'more forgiving principle
ofrelation back' in the John Doe context, compared to the federal relation back doctrine under
Rule 15(c)(l)(C). We hold that it does."). Defendant's new arguments do not alter this
conclusion. See also infra Section IV(B).
B.
Federal Rule lS(c)(l)(C)
The amended pleading also relates back under Federal Rule of Civil Procedure
15(c)(1 )(C). This case does not rely on substitution for a John Doe defendant, since nothing has
been produced to alter the court's conclusion that "the facts and circumstances indicate that
Detective Tranchina should be substituted for [Detective Shapiro, the originally named
defendant,] since Tranchina conducted the investigation related to Plaintiff's alleged unlawful
robbery prosecution." Nov. 8, 2017 Order at 55. Federal Rule 15(c)(l)(C) is applicable because
this is not a "John Doe" case. Cf Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) ("This
Court's interpretation of Rule 15(c)(l)(C) makes clear that the lack of knowledge of a John Doe
defendant's name does not constitute a 'mistake of identity."') (quoting Barrow v. Wethersfield
Police Dept., 66 F.3d 466, 470 (2d Cir.1995)).
Defendant argues that because plaintiff did not sign a release allowing the Corporation
Counsel to access the sealed criminal case file, "the Office of the Corporation Counsel did not
have access to the information the Court now faults it for not turning over during the applicable
statute oflimitations." Mot. for Reconsideration at 5.
11
The relevant inquiry under Rule 15(c)(l)(C), however, is whether the later named
defendant knew or should have known within 120 days of the filing of a timely complaint that
but for a mistake he would have been a defendant in the action. Krupski v. Costa Crociere S. p.
A., 560 U.S. 538, 545 (2010) ("'[W]ithin the period provided by Rule 4(m) for serving the
summons and complaint' (which is ordinarily 120 days from when the complaint is filed, see
Rule 4(m)), the newly named defendant must have 'received such notice of the action that it will
not be prejudiced in defending on the merits."') (quoting Fed. R. Civ. P. 15(c)(l)(C)). "[A]ny
delay on [plaintiffs] part is relevant only to the extent it may have informed [the newly named
defendant's] understanding during the Rule 4(m) period of whether she made a mistake
originally." Id. at 555. The Rule 4(m) timeframe was changed effective December 1, 2015 from
120 days to 90 days, but this lawsuit was filed on September 5, 2015 so the 120 timeframe
applies. See Galindo v. ASRC Fed. Holding Co., LLC, No. GJH-15-940, 2016 WL 2621949, at
*1 n.1 (D. Md. May 5, 2016) ("On December 1, 2015, the amended Rule 4(m) became effective,
requiring that service be completed within 90 days of the filing of the Complaint. Because this
action was initialed on April 1, 2015, the prior version of Rule 4(m), allowing 120 days for
service, controls.").
Defendant's argument that "because of plaintiffs dilatory tactics, this Office could not
have known that plaintiff had named the wrong party, or that Detective Tranchina was a proper
party, until more than three months after the statute of limitations expired," is not decisive. Mot.
for Reconsideration at 10. Plaintiff returned the appropriate release approximately 97 days after
the suit was filed-i.e., less than the 120-day period previously allotted in Rule 4(m) for serving
a summons. Id. at 8. The Corporation Counsel had more than 20 days to investigate the case
and inform Detective Tranchina of his jeopardy.
12
That plaintiff may have known about Detective Tranchina-a highly unlikely hypothesis
given that no tactical or strategic advantage could be gained by suing the wrong defendant-is
also not dispositive under Rule 15(c)(1 )(C). The Supreme Court ih Krupski addresses this
precise scenario.
We agree that making a deliberate choice to sue one party instead of another while
fully understanding the factual and legal differences between the two parties is the
antithesis of making a mistake concerning the proper party's identity. We disagree,
however, with respondent's position that any time a plaintiff is aware of the
existence of two parties and chooses to sue the wrong one, the proper defendant
could reasonably believe that the plaintiff made no mistake. The reasonableness of
the mistake is not itself at issue. As noted, a plaintiff might know that the
prospective defendant exists but nonetheless harbor a misunderstanding about his
status or role in the events giving rise to the claim at issue, and she may mistakenly
choose to sue a different defendant based on that misimpression. That kind of
deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1 )(C)(ii)
has been satisfied.
Id at 549 (emphasis added).
It is not possible to conceive of any situation in which a plaintiff "fully underst[ ood] the
factual and legal differences between the two" officers, Detectives Tranchina and Shapiro, and
deliberately sued the wrong officer. Id.
That a plaintiff knows of a party's existence does not preclude her from making a
mistake with respect to that party's identity. A plaintiff may know that a prospective
defendant-call him party A-exists, while erroneously believing him to have the
status ofparty B. Similarly, a plaintiff may know generally what party A does while
misunderstanding the roles that party A and party B played in the "conduct,
transaction, or occurrence" giving rise to her claim. If the plaintiff sues party B
instead of party A under these circumstances, she has made a "mistake concerning
the proper party's identity" notwithstanding her knowledge of the existence of both
parties. The only question under Rule 15(c)(l)(C)(ii), then, is whether party A knew
or should have known that, absent some mistake, the action would have been
brought against him.
Id. at 549 (emphasis added).
After learning of Detective Tranchina's involvement, the Corporation Counsel did
nothing to warn the detective or inform plaintiff (and the wrong defendant apparently did nothing
13
to alert his counsel that he was not the right defendant). Naming the wrong defendant may have
been careless of plaintiffs counsel, but it was not deliberate. As noted in the November 8, 2017
Order, the Supreme Court of the United States and the New York Court of Appeals have directed
lower courts to focus on a prospective defendant's actual or constructive knowledge. See
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 545 (2010); Buran v. Coupal, 661 N.E.2d 978,
983 (N.Y. 1995). Even if both parties were at fault for the mistakes in the instant case, the
Corporation Counsel could have, and should have, solved the problem by prompt notification to
plaintiffs counsel.
C.
Ethics of Government Counsel
The court notes its continued concern about the Corporation Counsel's ethical position in
its handling of this case. The Corporation Counsel is held to a high ethical standard. The Office
must be guided by the words of its leader that "[n]ot only must we vigorously advocate the legal
position of the City, but we should never be indifferent to the fairness of the outcome and its
impact." Corporation Counsel's Message, http://www.nyc.gov/html/law/html/about/counsel-
message.shtml (last visited Jan. 29, 2017) (emphasis added).
What would have been the legal harm in consenting to the addition of Detective
Tranchina instead of filing a motion to dismiss? Why would the Corporation Counsel seek to
quash a subpoena issued for the deposition of Detective Tranchina when it knew that he was the
proper defendant? Even if these actions took place after the statute of limitations expired, the
conduct is troubling. Had civility ruled the litigation, this litigation would likely have ended
some time ago. The Corporation Counsel's hardball tactics may end up costing the residents of
New York more money because plaintiffs counsel has been forced to litigate what would
otherwise be unnecessary motions in a case with the potential for fee shifting. Cf Martinez v.
14
City of New York, No. 16 CV 79 slip op. at 35, 62 (E.D.N.Y. Jan. 24, 2017) (citing the instant
case and chastising defense counsel for failure to identify a key witness).
It would be particularly anomalous to dismiss this case because plaintiffs attorney was
mistaken about which officer to sue. The invariable practice seems to be for the City-should an
officer be held liable by the jury-to pay the judgment. Cf F.S.C. Northrop, The Complexity of
Legal and Ethical Experience 6 (1959) ("But although the life of the law is experience, as a great
jurist has noted, it is also more than experience; for before experience can give anything as
determinate, complex, particular and practical as law, it has to be analyzed."). From a fiscal
point of view, it would make no difference which officer was named. See N.Y. Gen. Mun. Law
ยง 50-k(3) (McKinney 2017) ("The city shall indemnify and save harmless its employees in the
amount of any judgment obtained against such employees in any state or federal court, ...
provided that the act or omission from which such judgment or settlement arose occurred while
the employee was acting within the scope of his public employment and in the discharge of his
duties and was not in violation of any rule or regulation of his.").
VI.
December 12, 2017 Summary Judgment Order
A.
Misleading Evidence Before the Grand Jury
Defendant Tranchina challenges the court's December 12, 2017 Order, ECF No. 93. An
appeal of that order is pending and defendant claims that the order does not apply to him. Letter
of the Corporation Counsel, ECF No. 108, Jan. 19, 2018. The December 12, 2017 Order held
that the District Attorney and Detective Tranchina mislead the grand jury about the probative
strength of the identification in the instant case, that there was not probable cause to initiate the
robbery case against plaintiff and it denied qualified immunity.
15
The December 12, 2017 Order is confirmed. By separate order, the court set a briefing
schedule on a second motion for summary judgment. See Jan. 25, 2018 Order, ECF No. 109.
Since the filing of the order, new evidence has come to light suggesting strongly that the
grand jury was misled and that there was a lack of probable cause to initiate and continue the
criminal robbery case against plaintiff. See Exhibit A. In a memorandum dated July 31, 2012,
the Queens County District Attorney's Office wrote:
There is video surveillance of the robbery from which still photos of the perpetrator
were developed. The perpetrator does not appear to be the defendant based upon a
comparison to his arrest photo of 4-24-06. I also recently tried defendant's murder
case and observed him extensively. He does NOT appear to be the same person in
the video surveillance or still photos.
Id. at 4 (emphasis in original).
This document tends to confirm the order in the instant case. See, e.g., December 12,
201 7 Order at 9 ("The dismissal was apparently based on a videotape in the possession of the
police, which showed a person other than Plaintiff as the robber."); id. at 30 ("[Detective
Tranchina] could have reviewed a video retrieved from the store, which showed a person who
had come to the store the day before and who Mr. Sarwar had told police was the perpetrator.");
id. at 32 ("There was also a video that was not shown to the grand jury .... ").
The letter provides additional support for the court's conclusion of an injustice if this
civil case were not allowed to proceed to trial. It particularly bolsters this court's original
conclusion that "a civil jury could find that Detective Tranchina did not make 'a complete and
full statement of facts either to the Grand Jury or to the District Attorney."' Dec. 12, 2017 Order
at 32 (citing Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)). If a review of the video
plainly showed a person other than plaintiff as the robber, it is a fair inference on summary
judgment that the video was not shown to the prosecutor, or that the prosecutor and detective
16
colluded to withhold this highly probative evidence from the jury. Cf Dufort v. City of New
York, 874 F.3d 338, 352 (2d Cir. 2017) ('"[I]ntervening exercise ofindependentjudgment' by a
prosecutor to pursue the case usually breaks the 'chain of causation' unless the plaintiff can
produce evidence that the prosecutor was 'misled or pressured' by the police.") (quoting Townes
v. City ofNew York, 176 F.3d 138, 147 (2d Cir. 1999)).
B.
Applicability of Order
Detective Tranchina claims that the December 12, 2017 Order does not apply to him
because (1) the motion for summary judgment was "filed only by former defendants City of New
York and David Shapiro"; and (2) at the time the order was issued "Tranchina had not even been
served with a complaint in this action, was not represented by counsel, and had not formally
appeared as a defendant in this action." Letter of the Corporation Counsel, ECF No. 108, Jan.
19, 2018. This issue is moot since the court has allowed in effect a second motion for summary
judgment. See Jan. 25, 2018 Order, ECFNo.109.
For the sake of completeness and to assist the parties in their briefing of the second
summary judgment motion, the court adds that the Corporation Counsel premised the original
summary judgement motion on Detective Tranchina's conduct. He is mentioned seven times in
the Rule 56.1 Statement, four times in the opening brief, and five times in the reply brief. The
motion for summary judgment was filed while plaintiff's motion to add Detective Tranchina as a
new defendant was pending. He had been deposed in the case, and the Corporation Counsel filed
a motion ostensibly on his behalf to quash the subpoena issued for his deposition. See Nov. 4,
2016 Letter of Corporation Counsel, ECF No. 38. In response to this motion, the magistrate
judge issued an order stating, "[t]he Court expects that defense counsel, who represents
Detective Tranchina, will have debriefed him in advance of the November 21 settlement
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conference." Nov. 10, 2016 Order (emphasis added). At the time of the filing of the December
12, 2017 Order, he was a defendant in the case. See Second Am. Compl., ECF No. 88, Nov. 30,
3017.
It has been observed by this court and other judges of this district that it is the practice of
the City of New York to pay judgments on behalf of police officers, see supra Section IV(C),
and for all practical purposes, the City directs and controls the litigation without respect to the
police officer named. Cf Strada v. City of New York, No. l l-CV-5735, 2014 WL 3490306, at
*8 n.6 (E.D.N.Y. July 11, 2014) ("[H]ere, the City-the originally named party-has the duty to
represent and indemnify the untimely-added officers .... [T]he statutory duty of the City to
indemnify its officers, even absent vicarious liability, is sufficient to create a unity of interest
between the parties.").
An example of this litigation reality comes from the motion for reconsideration, which
the Corporation Counsel filed challenging the relation back order, when he purported to
represent only the City and Detective Shapiro. See Def.'s Mem. of Law, ECF No. 87, Ex. 9
("Defendants City of New York ('City') and David Shapiro ('Shapiro'), by their attorney,
Zachary W. Carter, Corporation Counsel of the City of New York, respectfully submit this
Memorandum of Law in support of their motion for reconsideration .... ");Deel. of Kavin
Thadani, ECF No. 87, Ex. 1 ("I am a Senior Counsel in the Office of Zachary Carter,
Corporation Counsel of the City of New York, and the attorney for defendants City of New York
('City') and David Shapiro."). The November 8, 2017 Order-now challenged in effect by
Detective Tranchina, although the motion is brought in the name of Detective Shapiroeffectively dismissed Detective Shapiro from the lawsuit. The Corporation Counsel's filing of
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this motion implicitly recognizes that the City is the only party with a financial stake in the
litigation.
VII.
Manifest Injustice
The Federal Rules of Civil Procedure is merits oriented. Cf Fed. R. Civ. P. 1 ("[The
Federal Rules of Civil Procedure] should be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding." (emphasis added)); Foman v. Davis, 371 U.S. 178, 181 ("[It is] entirely contrary to
the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the
basis of[] mere technicalities."). The Supreme Court of the United States has relied on manifest
injustice in a strong opinion by Justice Sotomayor directly bearing on relation back:
[The Supreme Court's] reading is consistent with the purpose of relation back: to
balance the interests of the defendant protected by the statute oflimitations with the
preference expressed in the Federal Rules of Civil Procedure in general, and Rule
15 in particular, for resolving disputes on their merits. A prospective defendant
who legitimately believed that the limitations period had passed without any
attempt to sue him has a strong interest in repose. But repose would be a windfall
for a prospective defendant who understood, or who should have understood, that
he escaped suit during the limitations period only because the plaintiff
misunderstood a crucial fact about his identity. Because a plaintiffs knowledge of
the existence of a party does not foreclose the possibility that she has made a
mistake of identity about which that party should have been aware, such knowledge
does not support that party's interest in repose.
Our reading is also consistent with the history of Rule 15(c)(1 )(C). That provision
was added in 1966 to respond to a recurring problem in suits against the Federal
Government, particularly in the Social Security context. Advisory Committee's
1966 Notes 122. Individuals who had filed timely lawsuits challenging the
administrative denial of benefits often failed to name the party identified in the
.statute as the proper defendant-the current Secretary of what was then the
Department of Health, Education, and Welfare-and named instead the United
States; the Department of Health, Education, and Welfare itself; the nonexistent
"Federal Security Administration"; or a Secretary who had recently retired from
office. By the time the plaintiffs discovered their mistakes, the statute oflimitations
in many cases had expired, and the district courts denied the plaintiffs leave to
amend on the ground that the amended complaints would not relate back. Rule 15 (c)
was therefore "amplified to provide a general solution" to this problem. It is
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conceivable that the Social Security litigants knew or reasonably should have
known the identity of the proper defendant either because of documents in their
administrative cases or by dint of the statute setting forth the filing requirements.
Nonetheless, the Advisory Committee clearly meant their filings to qualify as
mistakes under the Rule.
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550-51 (2010) (emphasis added) (internal
citations omitted).
Given the circumstances of the present case, it would be a miscarriage of justice (which
could not be cured through a malpractice suit against plaintiffs counsel, as suggested by the
Corporation Counsel), for the court to hold that the amended pleading does not relate back to the
filing of the original complaint. This matter should go to the jury.
VIII. Conclusion
Defendant's motion for reconsideration of the court's November 8, 2017 Order, ECF No.
84, is denied. The December 12, 2017 Order, ECF No. 93, is confirmed.
SO ORDERED.
ack B. Weinstem
Senior United States District Judge
Dated: January 30, 2018
Brooklyn, New York
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