Ortiz v. Hasper et al

Filing 127

MEMORANDUM & ORDER: Hasper's motion for summary judgment is granted in its entirety. Because no other claims remain outstanding (against the City of New York or otherwise), the Clerk of Court is respectfully directed to enter judgment and close this case. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 11/17/2021. (Guy, Alicia)

Case 1:15-cv-05724-EK-LB Document 127 Filed 11/17/21 Page 1 of 18 PageID #: 797

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------x
RAYMOND MARTINEZ, as Administrator of
the Estate of Robert Ortiz,
Plaintiff,
MEMORANDUM & ORDER
15-CV-5724(EK)(LB)

-againstPOLICE OFFICER JAMES HASPER,
Individually and in his Official
Capacity,
Defendant.
------------------------------------x
ERIC KOMITEE, United States District Judge:

Decedent Robert Ortiz, through his administrator,
brings claims against NYPD officer James Hasper under 42 U.S.C.
§ 1983 and state law for battery. 1

His claims arise from an

incident in which officer Hasper shot Ortiz after Ortiz led
police on a car chase through Brooklyn and, after finding
himself hemmed in on a crowded street, rammed a police car in an
effort to continue his flight.

Defendant Hasper moves for

summary judgment on these claims.

For the reasons set out

below, Hasper’s motion is granted.
I.

Background

The amended complaint also asserted claims for malicious prosecution,
denial of the right to a fair trial, and abuse of process against the City of
New York and several other NYPD officers who were present during the
shooting. See generally Amended Complaint, ECF No. 58. Plaintiff
voluntarily dismissed these claims in July 2020. See Order dated July 14,
2020. No claims remain against the City, as Plaintiff did not assert the
remaining excessive-force and battery claims against it.
1

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The following facts are drawn from the parties’ Local
Rule 56.1 statements, deposition transcripts, video footage of
the incident, and other documentary materials the parties
submitted.
The events leading up to the shooting are largely
undisputed.

Ortiz was driving while intoxicated, having

consumed “a pint of E&J brandy” and smoked a “dime bag” of
marijuana. 2

Officers began pursuing Ortiz after he proceeded

straight through an intersection from the left-turn-only lane,
cutting off and side-swiping a van in the process, on Rockaway
Parkway in Brooklyn.

Seeing the officers, Ortiz sped up, drove

down a side street, struck a fire hydrant, re-emerged on
Rockaway Parkway, and continued driving until he encountered
traffic on a busy stretch of that street.

As Ortiz approached

the traffic, Officer Hasper, who was in an unmarked vehicle in
the vicinity, joined the pursuit.
The moments leading up to and including the shooting
were captured on video by a storefront security camera on
Rockaway Parkway, and this decision is based in significant part
on my review of that video.

See, e.g., City of Tahlequah v.

Bond, 595 U.S. ----, slip op. at 1-3 (2021) (reversing Court of
Appeals and reinstating district court’s grant of summary
Plaintiff contends that his intoxication is “irrelevant” but does not
contest the accuracy of the contention. See Plaintiff’s 56.1 Statement ¶¶ 48.
2

2

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judgment in excessive-force case, based in significant part on
body-camera video); Scott v. Harris, 550 U.S. 372 (2007)
(reversing denial of summary judgment in a fleeing-motorist case
where video recording “clearly contradicts the version of the
story told by respondent”).
The video recording is two minutes and one second
long.

It shows Ortiz’s 1995 Chevy Suburban driving down

Rockaway Parkway, which at that point is a two-lane street with
parked cars on the side of both traffic lanes.

Exhibit L –

Surveillance footage (“video recording”), ECF No. 115-12.

A

number of pedestrians are visible on the near sidewalk and in a
crosswalk in the background.

Before Ortiz’s vehicle enters the

frame, at approximately the thirteen-second mark, we see a woman
run into the foreground of the video, hurriedly pushing a child
off the sidewalk and into a store.

Ortiz’s black Suburban

appears two or three seconds later, traveling at a higher rate
of speed than the cars that preceded it.

Though no lane

markings are visible, it is clear that Ortiz is driving at least
partially in the path of oncoming traffic, as he navigates
around a double-parked car on his right.

Officers are running

along the passenger side of the Suburban; at the same time,
numerous pedestrians run for cover.
Around the eighteen-second mark, Ortiz comes to a stop
just short of a car stopped in front of him.
3

A police car pulls

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up and parks behind him.

As more officers approach, Ortiz

reverses the Suburban, which weighs more than two-and-a-half
tons, 3 and crashes into the police car with enough force that the
police vehicle rocks (violently, at first) for more than five
full seconds.

See Defendant’s 56.1 Statement, ¶¶ 23, ECF No.

112; video recording at 0:20-0:28.

After hitting the police

car, the Suburban launches forward towards several police
officers.

The SUV pauses momentarily, then accelerates forward

and hits the car in front of it hard, pushing it forward into
another vehicle.

(The car Ortiz hit was driven by Carlene

Davis, a civilian who had her two-year old child with her.)

See

Plaintiff’s 56.1 Statement, ¶ 21, 65-66, ECF No. 114.
From the video recording (which has no sound), it is
not possible to tell the precise moment when Hasper fired his
weapon.

The parties have given varying accounts.

At his 2017

criminal trial on charges of reckless endangerment and assault,
Ortiz testified that he “got shot as soon as [he] hit the cop
car behind [him].”
111-3.

Criminal Trial Transcript 797:11-13, ECF No.

At his deposition in this case, however, Ortiz testified

that he backed into the police car, put his car in drive, drove
forward, and stopped his vehicle because Ms. Davis’s car was in

Edmunds, Used 1995 Chevrolet Suburban Specs & Features,
https://www.edmunds.com/chevrolet/suburban/1995/features-specs/ (last visited
Nov. 17, 2021) (listing “Curb Weight” of 5,587 pounds).
3

4

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the way, and then was shot. 56.1 ¶ 27.

He stated that he

slumped over the wheel, and only then hit Ms. Davis’s car.
¶ 65.

56.1

Ortiz also points to the deposition testimony of another

officer on the scene, P.O. Ramos, who testified that Ortiz’s
vehicle was not in motion when he was shot.
Statement ¶ 64.

See Def.’s 56.1

Hasper, for his part, maintains that he ordered

Ortiz to stop and exit the vehicle before discharging his
weapon, id. at ¶ 33-34, and that he fired “at some point after”
Ortiz backed into the police vehicle.

Id. at ¶ 25.

Ortiz sustained serious injuries and was hospitalized
for thirteen days.

He survived the shooting but died from

unrelated causes four years later.

Pl.’s Mem. of Law in Opp. to

Def.’s Mot. for Summ. Judgment (“Pl.’s Opp. Br.”) at 1 n.1, ECF
No. 116.
II.

Legal Standard

Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact” and
that she “is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A material fact is one that “can affect the

outcome under the applicable substantive law.”
Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

Graham v.

A genuine dispute is

one that can “reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

In

performing this analysis, the Court must resolve all ambiguities
5

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and draw all inferences in favor of the non-moving party.

Gallo

v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1223 (2d Cir. 1994).

“If, in this generous light, a material

issue is found to exist, summary judgment is improper.”
Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,
160 (2d Cir. 1999).
The moving party may establish that there is no
genuine dispute “by showing that little or no evidence may be
found in support of the nonmoving party’s case.”

Gallo, 22 F.3d

at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).

If the moving party meets this burden, the non-moving

party “must come forward with specific facts showing that there
is a genuine issue for trial.”
68, 73 (2d Cir. 1998).

LaBounty v. Coughlin, 137 F.3d

However, the non-moving party “must do

more than simply show that there is some metaphysical doubt as
to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.”
& Co., 654 F.3d 347, 358 (2d Cir. 2011). 4

Brown v. Eli Lilly

If “no rational finder

of fact could find in favor of the nonmoving party because the
evidence to support its case is so slight, summary judgment must
be granted.”

Id.
III.

Discussion

Unless otherwise noted, when quoting judicial decisions this order
omits all alterations, citations, footnotes, and internal quotation marks.
4

6

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Plaintiff brings claims for excessive force and
battery.

I address excessive force, the sole federal claim,

first.
A.

Excessive Force
A police officer’s application of force is excessive

“if it is objectively unreasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.”

Maxwell v. City of New York,

380 F.3d 106, 108 (2d Cir. 2004). The use of deadly force is
circumscribed by constitutional decisions dating back to
Tennessee v Garner, 471 U.S. 1, 3 (1985)).

Under that decision

and its progeny, deadly force is permissible only when an
“officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.”

Cowan ex rel. Cooper v. Breen, 352 F.3d

756, 764 (2d Cir. 2003) (citing Garner, 471 U.S. at 3); see also
Thevenin v. French, 850 F. App’x 32, 35 (2d Cir. 2021) (summary
order) (confirming that Cowan remains “clearly established law
in this Circuit”).

The Second Circuit does not appear to have

defined the phrase “significant physical injury” with precision. 5

See, e.g., Hasper’s Supp. Letter at 9, ECF No. 125 (“[N]o [c]ourt has
specifically delineated the categories of injury that would constitute
‘serious physical injury,’ in this specific context.”); Pl.’s Supp. Letter at
21, ECF No. 126 (pointing to definitions under New York Penal Law and the
Model Penal Codes). However high the threshold is set, the assessment must
take into account both the severity of the potential harm the officer is
trying to prevent and also the probability that such harm will come to pass.
5

7

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In determining whether the use of force was
reasonable, courts consider “the officer’s knowledge of
circumstances immediately prior to and at the moment that he
made the split-second decision to employ deadly force.”
v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).

Salim

Courts must view the

“reasonableness of a particular use of force . . . from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”

Graham v. Connor, 490 U.S.

386, 396 (1989).
B.

Qualified Immunity
The excessive-force claim against Hasper, a police

officer, must be viewed through the lens of qualified immunity.
See City of Tahlequah, 595 U.S. ----; Rivas-Villegas v.
Cortesluna, 595 U.S. ----, slip op. at 2 (2021) (per curiam).
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

When an

official asserts a qualified immunity defense, courts consider
whether “(1) the official violated a statutory or constitutional
right, and (2) . . . the right was ‘clearly established’ at the
time of the challenged conduct.”

Ricciuti v. Gyzenis, 834 F.3d

162, 167 (2d Cir. 2016) (quoting Saucier v. Katz, 533 U.S. 194
8

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(2001)).

Qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law.”

Doninger

v. Niehoff, 642 F.3d 334, 353 (2d Cir. 2011).
In excessive-force claims, the reasonableness inquiry
“overlap[s]” with the qualified-immunity analysis.
F.3d at 764.

Cowan, 352

The difference is that “the qualified immunity

inquiry goes on to ask whether any constitutional violation was
clearly established.”
661 (E.D.N.Y. 2017).

Jackson v. Tellado, 236 F. Supp. 3d 636,
A constitutional right is clearly

established “when it is “sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right.”

Rivas-Villegas, 595 U.S. ----, slip op.

at 2 (per curiam) (citing Mullenix v. Luna, 577 U. S. 7, 11
(2015); see also Jones v. Treubig, 963 F.3d 214, 224 (2d Cir.
2020) (right is clearly established when it would have been
“clear to a reasonable officer that his conduct was unlawful in
the situation he confronted”).
Courts “do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.”
U.S. 7, 12 (2015).

Mullenix v. Luna, 577

The inquiry “must be undertaken in light of

the specific context of the case, not as a broad general
proposition.”
curiam).

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

“[S]pecificity is especially important in the Fourth
9

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Amendment context, where . . . it is sometimes difficult for an
officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer
confronts.”

Mullenix, 577 U. S., at 12.

The analysis must turn

on the given case’s specific facts and circumstances, “including
the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”
C.

Graham v. Connor, 490 U. S. 386, 396 (1989).

The Shooting
Applying the qualified-immunity standard to the danger

posed by Ortiz’s actions, it is far from clear that Hasper’s
split-second decision to use deadly force violated clearly
established law.

Indeed, the weight of authority is to the

contrary: the Supreme Court and Second Circuit have, on multiple
occasions, afforded qualified immunity to an officer who
employed deadly force against a motorist who was driving
erratically in a crowded area in an effort to evade arrest.
These precedents preclude a determination that an “objectively
reasonable” officer would have known that Hasper’s action was
unlawful.
For instance, in O’Brien v. Barrows, 556 F. App’x 2
(2d Cir. 2014) (summary order), which predated Ortiz’s shooting,
the Second Circuit held that qualified immunity shielded a
10

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police officer who shot a motorist, even though the motorist was
not near pedestrians and was driving away from the only police
officer in the vicinity.

Adopting the district court’s

reasoning, the Second Circuit recognized that O’Brien had been
driving erratically, “back[ed] away” upon seeing police
cruisers, came within “five feet” of hitting an officer, and
then “took off” toward a “busy road.”

O’Brien v. Barrows, No.

1:10-CV-173, 2013 WL 486655, at *7 (D. Vt. Feb. 7, 2013); see
also O’Brien, 556 F. App’x at 4 (affirming summary judgment
“[f]or substantially the reasons stated by the district court”).
In the Second Circuit’s view, “no clearly established law made
the unlawfulness of [the officer’s] conduct apparent.”

O’Brien,

556 F. App’x at 4.
The same is true here.

In light of O’Brien, it cannot

be said that “existing precedent . . . placed the statutory or
constitutional question beyond debate.”
12.

In some ways, O’Brien posed less risk of bodily harm than

Ortiz did.
car.

Mullenix, 577 U.S. at

Unlike O’Brien, Ortiz actually did strike a police

And Ortiz was driving erratically with officers,

pedestrians, and other vehicles mere feet from his vehicle.
video recording at 0:16-0:25.

See

O’Brien may have been traveling

at a higher speed, but Ortiz accelerated rapidly in the critical
moments.

11

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Plaintiff points to a factual dispute over whether the
Suburban was stationary when Hasper pulled the trigger and
argues that this dispute precludes summary judgment.

Pl.’s Opp.

Br. at 7 (“Since the parties have given conflicting testimony as
to whether or not the vehicle was stopped at the time of the
shooting, summary judgment must be denied.”).

I view the facts

in the light most favorable to the Plaintiff, and therefore
presume that Hasper did indeed fire during the very brief moment
in which Ortiz came to a stop after hitting the police car,
shifting into drive, and pulling forward.

That moment lasts

about one second or less, and the video simply bears no
indication that Ortiz would have remained stopped. 6

Based on the

aggressive, evasive action he had taken merely seconds prior —
reversing and smashing into a police car — it was eminently
reasonable to expect that he would accelerate again.
In Plumhoff v. Rickard, 572 U.S. 765, 776 (2014), the
Supreme Court reversed the denial of qualified immunity to
police officers who used deadly force against a motorist who had
endeavored to flee but was at a “near standstill” at the time
the shooting occurred.

As in City of Tahlequah, 595 U.S. ----,

and Rivas-Villegas, 595 U.S. ----, no Justice dissented.

The

Court observed that the driver had, prior to stopping, posed a
Ortiz hits the police car behind him at the twenty-one second mark in
the video and Ms. Davis’s car in front at the twenty-four second mark. In
between, he comes to a standstill or near-standstill for mere instants.
6

12

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“grave public safety risk” by his reckless driving.
572 U.S. at 776.

Plumhoff,

Even though he “came temporarily to a near

standstill” before the shooting, the police officers were
justified in using deadly force, the Court held, because the
circumstances suggested that the driver would resume his flight
and again pose a deadly threat to others.

Id.

Plumhoff is notable because the Supreme Court held not
only that the officers were entitled to qualified immunity, but
that their actions actually comported with the Fourth Amendment
— that is, that no constitutional violation occurred, clearly
established or not. 7

This Court need not go so far under the

current circumstances.

It suffices, instead, to say that this

factual scenario, even if distinguishable in some regards from
Plumhoff, is sufficiently overlapping that a reasonable officer
could not be expected to distinguish it with confidence.
Accordingly, the doctrine of qualified immunity applies to
Officer Hasper’s action.

The Court reached the constitutional question first in Plumhoff in
light of guidance previously expressed in Pearson, 555 U.S. at 236, and
Saucier, 533 U.S. at 201-02. In Pearson, the Court guided Courts of Appeal
to consider the value of deciding the underlying constitutional question
before the qualified immunity question. This would help “promote[] the
development of constitutional precedent,” especially “with respect to
questions that do not frequently arise in cases in which a qualified immunity
defense is unavailable.” Pearson, 555 U.S. at 236. That guidance does not
apply with as much force to district courts, generally speaking. See
Plumhoff, 572 U.S. at 774 (referring to the value of an “appellate court”
deciding the constitutional question first). Accordingly, I consider only
the qualified immunity question here.
7

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Ortiz also attempts to resist summary judgment on the
basis that no police officers or pedestrians were standing
directly to the front or rear of the vehicle when he was shot.
Given that he was “boxed in” between vehicles, he argues, he
posed no threat.

But the video shows Ortiz had space to

maneuver, and perhaps enough room to escape.
pass him in the oncoming lane.

A car was able to

And the video plainly shows

several officers within striking distance of Ortiz’s vehicle as
well as a crowd of pedestrians on the nearby sidewalk, as in the
screenshot 8 below:

This image is extracted from Plaintiff’s Exhibit L. The raw video
footage shows a wider angle, but the Court has zoomed in to the most relevant
portion of the screen (the top left) for ease of view.
8

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At the top left of the image is Ortiz’s SUV, just
moments after he hit the NYPD vehicle.

An officer is just

between the marked NYPD car and Ortiz’s vehicle.

Multiple

officers are beside Ortiz’s vehicle (all indicated by circles).
The video also clearly reveals (when played) that another
officer is near the front left corner of Ortiz’s vehicle (below
the “2” in 2014 in the video’s date stamp), though that officer
is rendered somewhat blurry in the still image above.
Pedestrians are present, too, both on the sidewalk and in or
around parked vehicles.

Reviewing the video evidence, these

factors permit no genuine dispute here.

Williams v. City of

Grosse Pointe Park, 496 F.3d 482, 484 (6th Cir. 2007) (granting
summary judgment on excessive-force claim where officers shot
fleeing motorist who was driving between police cars that had
boxed him in); Peguero v. City of New York, No. 12-CV-5184, 2015
WL 1208353, at *9 (S.D.N.Y. Mar. 16, 2015) (granting summary
judgment on excessive-force claim, even though the officer “was
not in front of the car” when he shot the fleeting motorist);
O’Brien, 2013 WL 486655, at *8 (“[R]egardless of whether [the
police officer] stood to the side of the Plaintiff’s car or
directly in front of it, the Plaintiff acknowledges accelerating
rapidly forward within five feet of the officer.”).
Ortiz cites several cases in which courts denied
summary judgment on excessive-force claims involving fleeing
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motorists.

None of these cases change the conclusion here. 9

In

Cowan, the plaintiff adduced evidence that the police officer,
who was the only person in plaintiff’s vicinity, fired the first
of two shots from “about 44 feet” away from the side of
plaintiff’s vehicle, and that the plaintiff was driving “quite
slowly” (if at all) when the officer shot him.
at 759.

Cowan, 352 F.3d

And in Thevenin, a case with no video evidence, a

police officer shot a fleeing motorist following a “low to
average speed” chase, after the motorist crashed into a concrete
barrier with police vehicles surrounding him.
34, 35.

850 F. App’x at

Crucial to the court’s determination in Thevenin was

the conclusion that “no one was in danger” when the officer
opened fire.

Id. at 37.

Here, by contrast, Ortiz drove a

9 Ortiz also points to several cases from other circuits, but it is
unclear that out-of-circuit cases could serve to “clearly establish” the law
governing Hasper’s action. In one recent case, the Supreme Court wrote that
to be clearly established, a “rule must be settled law, which means it is
dictated by controlling authority or a robust consensus of cases of
persuasive authority.” District of Columbia v. Wesby, 138 S.Ct. 577, 589-90
(2018) (emphasis added). But in other cases, the Court has suggested that
the relevant universe of caselaw is substantially narrower — indeed, that it
may include no authority but Supreme Court authority. See, e.g., Reichle v.
Howards, 566 U.S. 658, 665-66 (2012) (“Assuming arguendo that controlling
Court of Appeals’ authority could be a dispositive source of clearly
established law in the circumstances of this case, the Tenth Circuit’s cases
do not satisfy the ‘clearly established’ standard here.”); Rivas-Villegas,
595 U.S. ----, slip op. at *2 (“Even assuming that controlling Circuit
precedent clearly establishes law for purposes of § 1983 . . . .”). The
Second Circuit, for its part, has flagged the “decisional law of the Supreme
Court and the applicable circuit court” — here, the Second Circuit itself —
as the relevant body of case law. Shechter v. Comptroller of City of New
York, 79 F.3d 265, 271 (2d Cir. 1996). Plaintiff’s out-of-circuit cases are
factually distinguishable in any event, as they involve little risk of
significant harm to pedestrians or others. See, e.g., Lewis v. Charter Twp.
of Flint, 660 F. App’x 339, 341 (6th Cir. 2016) (following stop for marijuana
possession, officer shot and killed motorist — after the car already passed
him — with no pedestrians nearby).

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5,500-pound vehicle in sudden, erratic bursts; struck a police
car with substantial force, evincing a strong resolve to escape;
and did so with officers at arm’s length from his vehicle, and
with civilians (both in cars and on the sidewalk) in the
immediate vicinity.
in danger.

In short, Ortiz’s actions put many people

None of the cases Ortiz cites involve this

combination of facts, let alone a videotape showing them
clearly.

Hasper’s motion for summary judgment on the excessive-

force claim is therefore granted on qualified-immunity grounds.
D.

State-law Claim
Plaintiff also brings a state-law claim for battery

against Hasper.

“New York law regarding assault and battery

generally parallels federal law regarding excessive force.”
Mesa v. City of New York, 09-cv-10464, 2013 WL 31002, at *27
(S.D.N.Y. January 3, 2013).

While “the doctrine of qualified

immunity applies to federal causes of action but is not
generally understood to protect officials from claims based on
state law,” Stein ex rel. Stein v. Barthelson, 419 Fed. Appx.
67, 71 (2d Cir. 2011), New York State has its own analogue.

The

New York courts “grant government officials qualified immunity
on state-law claims except where the officials’ actions are
undertaken in bad faith or without a reasonable basis.”
v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006).

Jones

Plaintiff does not

allege that Hasper acted in bad faith, and points to no evidence
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in the record that would support such a conclusion.

Given the

Court’s analysis on the excessive force claim, qualified
immunity applies to the battery claim too.

See Felix v. City of

New York, 408 F. Supp. 3d 304, 312 (S.D.N.Y. 2019) (“The finding
of qualified immunity on the excessive force claims requires a
grant of summary judgment on assault and battery as well.”);
Mesa, 2013 WL 31002, at *27 (“Thus, as the force employed
against Mesa was objectively reasonable under the circumstances
- giving rise to a finding of qualified immunity - her assault
and battery claims must fail as well.”).
IV.

Conclusion

For the reasons set out above, Hasper’s motion for
summary judgment is granted in its entirety.

Because no other

claims remain outstanding (against the City of New York or
otherwise), the Clerk of Court is respectfully directed to enter
judgment and close this case.

SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge

Dated:

November 17, 2021
Brooklyn, New York

18