Breitkopf et al v. Gentile et al

Filing 178

ORDER granting in part and denying in part 95 Motion for Summary Judgment; granting 116 Motion for Summary Judgment; granting in part and denying in part 119 Motion for Summary Judgment; granting in part and denying in part 139 Motion for Summary Judgment; granting 149 Motion for Summary Judgment. For the reasons set forth herein, the Court grants in part and denies in part the motions for summary judgment with respect to Gentile, the MTA, and Cafarella, and grants the motions for summary judgment in their entirety with respect to Ramos, the City, and the DiGeronimos. The surviving claims are the excessive force, battery, and wrongful death claims against Gentile; the related vicarious liability claim against the MTA; and the negligence, wrongful death, and GML § 205-e claims against Cafarella (based upon Penal Law Section 190.25). SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/29/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-1084 (JFB)(AKT)

_____________________

PAULA BREITKOPF, AS ADMINISTRATIX OF THE ESTATE OF GEOFFREY J. BREITKOPF,
DECEASED, AND PAULA BREITKOPF, INDIVIDUALLY,
Plaintiffs,
VERSUS

METROPOLITAN TRANSPORTATION AUTHORITY POLICE OFFICER GLENN GENTILE ET
AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
August 29, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Paula Breitkopf (“plaintiff”),
individually and on behalf of the estate of
her deceased husband, Nassau County
Police Department (“NCPD”) Officer
Geoffrey
Breitkopf
(“Breitkopf”
or
“decedent”), brings this action against
defendants Metropolitan Transportation
Authority (“MTA”) Police Officer Glenn
Gentile (“Gentile”); MTA Police Officer
Jose Ramos (“Ramos”); the MTA and the
MTA Police Department (“MTAPD”)
(collectively, the “MTA”); John Cafarella
(“Cafarella”); the Estate of Anthony G.
DiGeronimo (“Anthony” or the “Estate”);
David DiGeronimo (“David”) and Joanne
DiGeronimo (“Joanne”) (collectively, the
“DiGeronimos”); and the City of New York
(“NYC” or the “City”). Gentile killed
Breitkopf by friendly fire on March 12,
2011, during the aftermath of an incident

that resulted in Anthony’s death at his home
in Massapequa Park, New York. Plaintiff
brings numerous claims against defendants,
including federal claims pursuant to 42
U.S.C. § 1983 for violations of Breitkopf’s
Fourth Amendment rights, state law
negligence and intentional tort claims for
personal injury and wrongful death, and
state law claims for violations of New York
General Municipal Law (“GML”) § 205-e.
Presently before the Court are motions
for summary judgment from all defendants
except the Estate. (Motion for Summary
Judgment by John Cafarella (“Cafarella
Motion”), Docket No. 95; Motion for
Summary Judgment by David D.
DiGeronimo and Joanne DiGeronimo
(“DiGeronimo Motion”), Docket No. 116;
Motion for Summary Judgment by Glenn
Gentile (“Gentile Motion”), Docket No.
119; Motion for Summary Judgment by

adequately train Gentile and Ramos, the
Court concludes that such claims cannot
survive summary judgment because, inter
alia, there is insufficient evidence in the
record to create a genuine issue of material
fact on those claims. The Court also
concludes that any negligence claim against
the City cannot survive summary judgment.

Metropolitan Transportation Authority,
Metropolitan
Transportation Authority
Police Department, Jose Ramos (“MTA &
Ramos Motion”), Docket No. 139; Motion
for Summary Judgment by City of New
York (“NYC Motion”), Docket No. 149.)
For the reasons set forth in detail below, the
motions for summary judgment are granted
in part and denied in part with respect to
Gentile, the MTA, and Cafarella, and
granted in their entirety with respect to
Ramos, the City, and the DiGeronimos.

With respect to the negligence and
wrongful death claims against Cafarella, the
Court concludes that there are disputed
issues of material fact on the issue of
whether Cafarella’s alleged involvement in
the police activity (as a retired NYPD
sergeant) and his decision to yell “gun” (or
words to that effect) negligently caused
Breitkopf’s death. Thus, summary judgment
on these claims against Cafarella is
unwarranted. The Court similarly concludes
that the Section 205-e claim against
Cafarella, based upon an alleged violation of
N.Y. Penal Law § 190.25(3), survives
summary judgment, because there are issues
of fact as to whether Cafarella was trying to
induce Breitkopf and/or other police officers
to act in reliance on his pretended official or
approved authority, and induced Ramos and
Gentile to act on that pretended authority.

In particular, with respect to the Section
1983 claim against Gentile, the Court
concludes that genuine disputes of material
fact preclude summary judgment on the
issue of whether Gentile’s failure to realize
Breitkopf was a police officer and Gentile’s
decision to use lethal force were objectively
reasonable under the Fourth Amendment.
Those disputes also preclude summary
judgment on the Section 1983 claim against
Gentile on qualified immunity grounds. For
the same reasons, the state law claims for
battery and wrongful death against Gentile,
as well as the state law claim against the
MTA under a theory of respondeat superior
liability, also survive summary judgment.

With respect to the negligence claim
against the DiGeronimos, the Court
concludes that any alleged act or omissions
by them, including as it relates to their son’s
possession of knives (which precipitated the
police activity), cannot form the basis of a
negligence claim against them as it relates to
Breitkopf’s death. The DiGeronimos had no
duty to prevent friendly-fire shootings
among police officers at the scene after
Anthony was killed, and, in any event, no
rational jury could conclude, in light of the
other intervening events, that the
DiGeronimos’ alleged negligence involving
their son proximately caused Breitkopf’s
death. Thus, summary judgment in favor of
them on the negligence claim is warranted.

With respect to the Section 1983 and
state law battery and wrongful death claims
against Ramos, the Court concludes that no
rational jury could find that Ramos’s
decision to grab Breitkopf, upon hearing
retired New York City Police Department
(“NYPD”) Sergeant Cafarella yell “gun” (or
“drop your weapon”) as he saw Breitkopf
walking past him in plainclothes and holding
a rifle, was objectively unreasonable and,
thus, constituted excessive force under the
circumstances. In the alternative, the Court
concludes that Ramos’s actions would be
protected by qualified immunity.
With respect to the Section 1983 claims
against the MTA and the City for failure to
2

Finally, the Court also concludes that,
with the exception of the above-referenced
claim against Cafarella, the GML § 205-e
claims cannot survive summary judgment.
I.

Counterstatement”) ¶ 4.) He maintained a
collection of knives, swords, and other
weapons in his bedroom, which he kept
unlocked and his mother entered almost
every day. (Id. ¶¶ 5–6.) One of the knives
was an Interceptor, a knuckles blade knife
that Anthony generally kept in a plastic
holder. (DiGeronimo 56.1 ¶ 7; see MySpace
Profile Screenshot, Response in Opposition
to the Motion for Summary Judgment of
David D. DiGeronimo and Joanne
DiGeronimo (“DiGeronimo Opp.”) Ex. E
(showing Anthony holding the Interceptor).)
Joanne testified that, prior to March 12,
2011, she never saw Anthony leave the
house with any weapons, and she had no
concerns
about
his
interests.
(Pl.
DiGeronimo 56.1 Counterstatement ¶ 8; Pl.
DiGeronimo 56.1 Suppl. ¶ 11.)

BACKGROUND

A. Factual Background
The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. The Court
construes the facts with respect to each
motion in the light most favorable to the
nonmoving party, plaintiff. See Capobianco
v. City of New York, 422 F.3d 47, 50 (2d Cir.
2005). The parties’ Rule 56.1 statements
contain specific citations to the record, and
the Court generally cites to the statements
rather than to the underlying citations.
Unless otherwise noted, where a Rule 56.1
statement is cited, that fact is undisputed or
the opposing party has not pointed to any
contradictory evidence in the record.

At around noon on March 12, the
DiGeronimos were in their kitchen when
Anthony entered the kitchen dressed in an
outfit he often wore while playing video
games, including a mask that covered his
face from his nose down to his chin. (Pl.
DiGeronimo 56.1 Suppl. ¶ 12.) David told
Anthony to take the mask off; the two then
had a heated exchange, and David told
Anthony to leave and come back when his
attitude changed. (Id. ¶¶ 13–14.) During his
first deposition, David testified that when
Anthony left the house, he was carrying a
thin, black-handled, seven-inch knife. (Id.
¶ 16; see also Memorandum of Interview
with David DiGeronimo (“DiGeronimo
Interview”), DiGeronimo Opp. Ex. D
(corroborating first deposition testimony
during interview on June 10, 2011).) During
a later deposition, David recanted and
stated: “When [Anthony] was in the kitchen
before he left, I didn’t see knives at that
point. When he came back to the house is
when I saw the knives on him, but before he
left, I didn’t see it.” (Second Deposition of
David
DiGeronimo
(“Second
D.
DiGeronimo Dep.”) at 6:4–19, DiGeronimo

1. The Death of Anthony DiGeronimo
On March 12, 2011, the day Gentile shot
Breitkopf, the DiGeronimos; their 21-yearold son, Anthony; and Anthony’s brother,
Jonathan, resided at 5 Fourth Avenue in
Massapequa Park, New York. (Plaintiff’s
Supplementary Facts in Response to the
DiGeronimos’ Rule 56.1 Statement (“Pl.
DiGeronimo 56.1 Suppl.”) ¶ 1.) The
DiGeronimos previously owned a hobby
shop in Amityville, New York, where they
sold radio-controlled cars, rockets, knives,
and swords, among other products. (Id. ¶ 2.)
Although Anthony had worked in the store,
he was unemployed in March 2011, and his
parents supported him economically. (Id.
¶ 3.) Anthony, an avid video gamer who
would wear costumes while playing, was
interested in different religions, including
Satanism. (Plaintiff’s Counterstatement of
Facts in Response to the DiGeronimos’ Rule
56.1 Statement (“Pl. DiGeronimo 56.1
3

Opp. Ex. F.) The DiGeronimos did not see
Anthony again until that evening.

Motion Ex. B; see also Cafarella 56.1 ¶ 1.)
Anthony, ignoring Lewis’s commands,
eventually stopped charging, turned back,
and started walking towards his home.
(Lewis Dep. at 23:10–24:6.) Lewis radioed
for an Emergency Services Unit, and
Cafarella called 911 to request assistance for
Lewis. (Lewis Dep. at 31:3–32:10; Cafarella
Dep. at 41:8–12.) Cafarella approached the
house to get the address. (Plaintiff’s
Supplementary Facts in Response to
Cafarella’s Rule 56.1 Statement (“Pl.
Cafarella 56.1 Suppl.”) ¶ 15.)

At approximately 8:10 p.m., NCPD
Officer Paul Lewis (“Lewis”) responded to
the intersection of Front Street and Fourth
Avenue in Massapequa Park after a 911
caller reported seeing a male walking with
knives.1 (Deposition of Paul Lewis (“Lewis
Dep.”) at 10:3–14:12, MTA & Ramos
Motion Ex. A; Nassau County District
Attorney’s Office: “Investigation into the
Deaths of Anthony DiGeronimo and Officer
Geoffrey Breitkopf” (“DA Report”), MTA
& Ramos Motion Ex. Y; see also Pl.
DiGeronimo 56.1 Suppl. ¶ 18.) Lewis
encountered Anthony, who was wearing a
mask and clothing Lewis described as
“satanic in nature,” and carrying a knife in
each hand. (Lewis Dep. at 15:21–16:19; Pl.
DiGeronimo 56.1 Suppl. ¶ 21.) Lewis
ordered Anthony to drop the knives, and, in
response, Anthony charged Lewis. (Lewis
Dep. at 19:12–21:7.) Cafarella, a retired
NYPD sergeant, also was present. He urged
Anthony to comply with Lewis’s orders.
(Lewis Dep. at 28:14–20; Deposition of
John Cafarella (“Cafarella Dep.”) at 11:4–
18, 34:0–35:22, 38:11–24, MTA & Ramos

After Anthony reached his house and
David ushered him inside, Lewis and NCPD
Officer Richard McDonald entered with
their guns drawn. (Pl. DiGeronimo 56.1
Suppl. ¶¶ 25–27; Lewis Dep. at 36:3–39:2.)
Anthony eventually emerged from his
bedroom, came towards the officers with a
knife held upward, and was shot and killed.
(MTA & Ramos 56.1 ¶ 3; DA Report, at 6–
7.) Officers then transmitted a radio
broadcast of “shots fired” and requested an
ambulance. (MTA & Ramos 56.1 ¶ 4.) This
was quickly followed by the broadcast of a
code 1087, or “slow down” order, meaning
that while officers could still respond to the
scene, there was no immediate urgency to do
so, or need to come as fast as before. (See id.
¶ 5; Plaintiff’s Counterstatement of Facts in
Response to the MTA’s and Ramos’s Rule
56.1 Statement (“Pl. MTA & Ramos 56.1
Counterstatement”) ¶ 5.) NCPD officers also
panned out and created a perimeter around
the DiGeronimos’ house. (Pl. DiGeronimo
56.1 Suppl. ¶ 39.)

1

During oral argument, plaintiff’s counsel argued
that it is disputed whether Anthony was carrying the
Interceptor with him on March 12. The Court
disagrees. There is no testimony or documentary
evidence from which a reasonable factfinder could
conclude that Anthony was carrying the Interceptor,
an item obviously different from a black-handled,
seven-inch knife. (See MySpace Profile Screenshot,
DiGeronimo Opp. Ex. E (showing Anthony holding
Interceptor).) Plaintiff’s speculation cannot establish
a genuine dispute of fact on this issue. Therefore, it is
uncontroverted that the Interceptor was in Anthony’s
room and played no part in the incident preceding
Breitkopf’s death. In any event, this issue is
immaterial to the claims in this case because, as
discussed infra, no rational jury could find proximate
cause between Anthony’s actions (and his parents’
alleged inaction) and the death of Breitkopf.

After the whole incident, including
Breitkopf’s death, officers from the NCPD
Crime Scene Unit responded and took
photographs of Anthony’s room. (Id. ¶ 46.)
Shelves contained a hatchet, mallet, swords,
and several large and small knifes. (Id.)
Officers recovered a knife, leather cap, and a
black and gray mask on the floor near
4

Anthony’s body. (Id. ¶ 47.) Among the
weapons recovered were two 16-inch (with
10-inch blade) knives, a wooden-handled
knife, a machete with a 17.75-inch blade, a
samurai sword, a Dacor knife with a 7-inch
serrated blade, a Marines saber with a 29inch blade, and the Interceptor. (Id. ¶ 48.)

63:9–12, 65:2–21, 80:19–81:3, MTA &
Ramos Motion Ex. G.)
After Anthony was shot, more
uniformed officers arrived, and onlookers
gathered in front. (E.g., Ramos Dep. at
55:4–17, 69:14–16; Gentile Dep. at 60:4–8;
Lewis Dep. at 68:2–22; see also Pl. MTA &
Ramos 56.1 Counterstatement ¶ 33.) One
man attempted to force his way past the
NCPD officers and onto the property. (Pl.
MTA & Ramos 56.1 Counterstatement ¶ 34;
Plaintiff’s Supplementary Facts in Response
to the MTA’s and Ramos’s Rule 56.1
Statement (“Pl. MTA & Ramos 56.1
Suppl.”) ¶ 34.) Cafarella blocked the path of
a woman, Theresa Kelly (“Kelly”), who was
exiting her car and proceeding toward the
house while “ranting” that “he [Anthony]
scratched my car.” (Cafarella Dep. at 58:7–
60:12.) Cafarella, who had identified
himself to NCPD officers as “retired from
the job” (see Plaintiff’s Counterstatement of
Facts in Response to Cafarella Rule 56.1
Statement
(“Pl.
Cafarella
Counterstatement”) ¶ 2), told Kelly that the
situation could be dangerous and to move
her vehicle, and he ultimately kicked the car
and yelled at her, “[G]et the f*** out of
here, do you want to get killed?”3 (Cafarella
Dep. at 59:24–60:12; Pl. MTA & Ramos
56.1 Counterstatement ¶ 36.) NCPD Officer
David Hicks (“Hicks”) testified that there
were “disturbances all around.” (Deposition
of David Hicks (“Hicks Dep.”) at 43:16–17,
MTA & Ramos Motion Ex. J.)

2. Gentile and Ramos Respond
The night of the shootings, MTAPD
Officers Gentile and Ramos were patrolling
in a marked vehicle in Massapequa. (MTA
& Ramos 56.1 ¶ 6.) They saw an NCPD
cruiser speed by with its lights and sirens
activated, heard an “agitated” broadcast over
their MTA-issued NCPD radio concerning
an emotionally disturbed person in the area
of Front Street and Fourth Avenue in
Massapequa Park, and proceeded to that
location. (Id. ¶ 7; Pl. MTA & Ramos 56.1
Counterstatement ¶ 7.) Upon arriving,
Gentile and Ramos saw NCPD vehicles and
heard the “shots fired” transmission. (MTA
& Ramos 56.1 ¶ 7.) They then walked
towards 5 Fourth Avenue, where five or
more uniformed NCPD officers were on the
front lawn, to offer assistance. (Id. ¶ 8.)
According to Gentile, he entered the house,
saw officers crouched over a body, and went
back outside “[t]o assist in any way I could.”
(Deposition of Glenn Gentile (“Gentile
Dep.”) at 57:13–59:23, 66:12–16, MTA &
Ramos Motion Ex. H.) Ramos, who had
overheard the “slow down” transmission,
decided to remain on the front lawn talking
to NCPD officers, and intended to leave if
he was not needed.2 (Deposition of Jose
Ramos (“Ramos Dep.”) at 52:17–54:4,
2

3

Plaintiff emphasizes that Gentile and Ramos were
not NCPD officers, were not on MTA property, and
never informed the MTA or NCPD of their presence.
(E.g., Response in Opposition to the Motion for
Summary Judgment of the MTA and Ramos (“MTA
& Ramos Opp.”), Docket No. 157, at 1; Pl. MTA &
Ramos 56.1 Suppl. ¶¶ 12, 18–27.)

Based on Cafarella’s actions, Lewis presumed he
was law enforcement, and Kelly thought he was a
plainclothes officer. (Pl. Cafarella Counterstatement
¶ 3.) There is no evidence that Cafarella identified
himself to Ramos or Gentile before Breitkopf’s
death, or that either knew of Cafarella’s presence and
presumed he was an active duty officer.

5

see Breitkopf’s shield when they left the car,
but he “was not even looking at
[Breitkopf].”4 (Id. at 65:21–23.) Breitkopf,
with his long rifle held in front of him on a
one-point shoulder sling with the muzzle
pointed downward, proceeded toward the
home over twenty feet away at a “brisk”
pace. (Id. ¶ 20; Pl. MTA & Ramos 56.1
Counterstatement ¶ 20.) Hicks saw
Breitkopf cross the street and recognized
him as a BSO officer, but he did not see a
shield. (Hicks Dep. at 38:7–39:16, 41:18–
21.) They acknowledged each other, and
Hicks allowed Breitkopf to pass.5 (Id. at
42:22–43:13.)

3. The Shooting of Geoffrey Breitkopf
NCPD Officers Breitkopf and Hector
Rentas (“Rentas”) were members of
NCPD’s Bureau of Special Operations
(“BSO”), a tactical unit that receives SWAT
training. (MTA & Ramos 56.1 ¶ 10.) On
March 12, a BSO lieutenant instructed
Breitkopf and Rentas to respond to a call of
a man with a knife at Fourth Avenue. (Id.
¶ 11.) Breitkopf and Rentas, both in
plainclothes, drove to the location in an
unmarked vehicle. (Id. ¶ 12.) Rentas did not
recall sending a transmission that a BSO
unit was responding, nor did he recall
hearing a transmission conveying that
information. (Deposition of Hector Rentas
(“Rentas Dep.”) at 56:4–12, MTA & Ramos
Motion Ex. M.) En route, Breitkopf and
Rentas
heard
the
“shots
fired”
communication and the request for an
ambulance, followed by the “slow down”
order. (MTA & Ramos 56.1 ¶ 13.) They
reduced their speed, but continued towards
the location. (Id. ¶ 14.)

Cafarella, who had remained at the
scene,
was
looking
towards
the
DiGeronimos’ home when, out of his
peripheral vision, he saw a person—
Breitkopf—carrying a rifle. (Cafarella Dep.
at 71:19–72:25, 95:4–21.) The shoulder
strap and large capacity magazine caught
Cafarella’s attention. (MTA & Ramos 56.1
¶ 22.) Because Cafarella did not know
Breitkopf, Breitkopf was in plainclothes,
and Cafarella saw nothing clearly
identifying the man as a police officer,
Cafarella believed that Breitkopf was a
civilian carrying an assault rifle.6 (See id.

Breitkopf and Rentas parked on Front
Street and went to the trunk to retrieve their
Rock River AR15 long rifles (also known as
M4 long rifles). (Id. ¶ 15.) According to
Rentas, despite the “slow down” order, they
“didn’t know what kind of condition the
scene was” in. (Id. ¶ 15.) Inside the trunk,
Breitkopf and Rentas had raid jackets with
an orange NCPD patch on each shoulder and
the word “POLICE” emblazoned on the
front and back, but they did not put them on.
(Id. ¶¶ 16–17.) The officers also left behind
mesh vests with identifying markings. (Id.
¶ 18.) Rentas did not believe these were
necessary under the circumstances. (Rentas
Dep. at 68:7–10.) He did make sure that that
his police shield was displayed visibly on a
chain around his neck. (MTA & Ramos 56.1
¶ 19.) Breitkopf, meanwhile, was wearing a
burgundy maroon-colored hoodie and pants.
(Rentas Dep. at 64:16–20.) Rentas did not

4

Rentas remembered seeing Breitkopf’s shield after
the shooting—while Breitkopf was being placed on a
trundle to be lifted into the ambulance. (Pl. MTA &
Ramos 56.1 Counterstatement ¶ 19.)
5

NCPD Officer James McNally (“McNally”), who
knew Breitkopf, saw him approach with the rifle on a
strap at a downward angle. (Deposition of James
McNally (“McNally Dep.”) at 54:16–56:24, MTA &
Ramos Opp. Ex. J.)
6

Plaintiff claims that Cafarella should have known
that Breitkopf was a plainclothes officer because: (1)
while on active duty, Cafarella had been at scenes
involving plainclothes officers and has used the same
M4 assault rifle; (2) Rentas and another individual
saw Breitkopf’s shield around his neck later that
evening; and (3) “significantly,” other NCPD officers
recognized Breitkopf as he approached the house.

6

¶ 23; Cafarella Dep. at 109:9–110:13 (“I did
not see any police uniform on this person or
any identifying mark as a police officer. . . .
I saw somebody with an assault rifle on the
lawn where a crime had just been
committed. . . . He didn’t identify himself.
He didn’t have any outermost garments. I
don’t know if he was going to create an
imminent threat, but he did not identify
himself.”).) According to Cafarella,
Cafarella shouted, “Gun, this guy has got a
gun.”7 (MTA & Ramos 56.1 ¶ 24.) He
testified that Breitkopf did not move, turn,
or exhibit any aggressive body movement
towards him. (Cafarella Dep. at 98:7–15.)
Further, after he said “gun,” he saw some
quick movement, instinctively turned and
backed away for his own safety, and then
heard “some sort of scuffle” followed by a
“pop.” (Id. at 99:19–100:17.) “[A] few
seconds” elapsed from the point Cafarella
said “gun” to the point he heard the gunshot.
(Id. at 96:23–97:5.) Cafarella never saw the
barrel of the gun go up, because he had
looked away. (Id. at 100:18–23.) He also did
not “hear anybody speaking, such as who
are you, on the job, MOS, LEO”; that is, he
heard no identification from anyone,
including Breitkopf. (Id. at 113:8–15.)

reached for his weapon but did not unlock
the holster, and he turned to see “who was
being challenged.” (Id. at 82:4–83:25.) To
his left, he saw a white male in a dark shirt,
without “identifying marks” and carrying “a
long rifle or a long weapon.” (MTA &
Ramos 56.1 ¶ 26.) According to Ramos, the
stock of the weapon was at the man’s right
side, in the area of his chest and shoulder,
and the man’s right hand was close to the
trigger. (Id. ¶ 27.) Ramos did not see exactly
where the barrel was pointed:
Q. Did you see the muzzle when you
first saw it?
A. I don’t recall specifically getting
to see where the muzzle was.
Q. Did you have an idea knowing
weapons what the direction the rifle
was pointing in?
A. Yes.
Q. Which direction was it pointing
in?
A. It was pointing in towards his
lower left quadrant.
Q. Was it pointing towards his foot,
his pelvis, his ribs, or something
else?
A. It was pointing downward. I don’t
know what the specific direction it
was. I didn’t get the time to do that.

Ramos was on the lawn facing the front
of the house and talking to two NCPD
officers when he “overheard what I assumed
to be a Nassau County Police Officer
challenge somebody” and say “drop the
weapon.”8 (Ramos Dep. at 77:3–15.) Ramos

(Ramos Dep. at 86:7–21.)
Ramos did not hear any warning other
than “drop your weapon.” (Id. at 87:23–
88:2.) When he turned towards the direction
of the command, he testified that he saw
NCPD officers about three to four feet away
“go for [the man], you know, try to interact,
physically interact with him, and I grabbed
him with my left hand.” (Id. at 88:11–25.)
Ramos grabbed Breitkopf’s right shoulder
and grasped for the rifle in an “attempt to
stop [what Ramos perceived as] the threat.”
(MTA & Ramos 56.1 ¶ 28.) He recalled
“seeing the Nassau County Officers grab

(E.g., Pl. MTA & Ramos 56.1 Counterstatement
¶ 23.) The Court addresses this issue more fully infra.
7

Although this is the phrasing Cafarella recalls using,
there is conflicting testimony on the precise wording
of Cafarella’s statement—that is, whether he said
“gun,” or “drop your weapon” or a similar phrase.
There is no dispute, however, that he made some
statement regarding the presence of a gun or weapon.
8

Only Ramos has testified that he heard that phrase.
(See Pl. MTA & Ramos 56.1 Counterstatement ¶ 25.)

7

him on the other side. . . .”9 (Id. at 105:13–
19; see id. at 106:19–21 (recalling that
NCPD officers made contact with
Breitkopf).) Gentile remembers seeing the
NCPD officers “make contact with”
Breitkopf’s body. (Id. at 106:19–21.)
According to Gentile, “[D]uring the
struggle, I saw a rifle slung across the front
of [Breitkopf’s] chest, and during the
struggle, I saw the rifle start coming up.”
(Gentile Dep. at 111:22–25, 115:2–9.)
About one second later, Gentile, who was
about five to ten feet away, fired one fatal
shot at Breitkopf. (MTA & Ramos 56.1
¶ 35; Gentile Dep. at 110:7–9 (stating that
he heard a shot go off about one second after
he saw Breitkopf spin around); 118:16–18.)
Gentile has no “conscious memory” of
having fired the fatal shot. (Gentile Dep. at
110:10–22, 119:5–22.) There is no evidence
that Gentile saw any shield on Breitkopf.10

him at the same time, and we were
attempting to subdue what I assumed was a
threat.” (Ramos Dep. at 104:14–17, 108:22–
109:14 (testifying that when he had his
hands on Breitkopf, the NCPD officers’
hands were on Breitkopf, too).) Ramos gave
no warning to Breitkopf. (See Pl. MTA &
Ramos 56.1 Counterstatement ¶ 28.) He also
did not know exactly where Breitkopf’s gun
was pointed. (See Ramos Dep. at 108:13–21,
112:5–9 (“It [the barrel] was in a downward
position, but we were also struggling, so I
don’t know where the barrel was going at
the particular time. . . . [Breitkopf] could
have shot any particular direction.”).)
Ramos did not believe, however, that
Breitkopf could have shot him during the
“struggle.” (Id. at 111:10–24.) Within little
more than a second after he grabbed
Breitkopf, Ramos heard a gunshot. (Id. at
104:18–105:3.)
Gentile recalled that, while he was on
the front lawn facing the house, police
officers and civilians were “all over.” (MTA
& Ramos 56.1 ¶ 30.) He stated that he saw a
“look of alarm” on the faces of two NCPD
officers about ten to fifteen feet to his left,
and simultaneously heard someone shouting
“something about a gun or a weapon.” (Id.
¶ 31.) According to Gentile, he turned to the
left and saw “a dark figure walking at a
brisk pace from my left rear,” two Nassau
cops “perk” up, and “a uniformed arm grab
the shoulder of the figure.” (Id. ¶ 32; Gentile
Dep. at 104:5–23.) He had not seen the man
before. (Gentile Dep. at 110:3–4 (“My first
glimpse of him was him being spun
around.”).) Gentile testified: “I saw the
figure kind of shrug off the attempt to grab
him. Then I saw the two Nassau cops go for
his other side. They made contact with him
and there was a brief struggle between the
figure, the two Nassau cops on one side, the
other uniformed arm that I saw grabbing

9

The involvement of NCPD officers is greatly
disputed. Only Ramos and Gentile have testified that
NCPD officers also grabbed Breitkopf. Others, such
as Hicks, claim that they saw NCPD officers
surrounding Breitkopf or falling to the ground with
him (see, e.g., Hicks Dep. at 48:10–49:9), but a
reasonable factfinder could infer that those officers
converged on Breitkopf after Gentile fired his
weapon. Detective Carl Re (“Re”) conducted the
NCPD Homicide Squad’s investigation of the
DiGeronimo and Breitkopf shootings. (Deposition of
Carl Re (“Re Dep.”) at 9:6–13:15, MTA & Ramos
Opp. Ex. O.) According to Re, Gentile did not
mention a confrontation between the NCPD and
Breitkopf. (Id. at 49:22–50:2, 92:10–93:10.) Re’s
reports also do not mention a struggle between
NCPD officers and Breitkopf. (Pl. MTA & Ramos
56.1 Suppl. ¶ 93.) Re also testified that no NCPD
officer indicated that an NCPD officer took “an
active role in bringing down, subduing Breitkopf
before the shot was fired.” (Re Dep. at 106:4–13.)
10

No one claims to have seen the shield before the
shooting. (See MTA & Ramos 56.1 ¶ 36.) Stephen
Parry (“Parry”), who rendered aid to Breitkopf, did
not recall seeing a shield when Breitkopf was turned
over, even after Parry cut open Breitkopf’s shirt to
expose his chest. (Deposition of Stephen Parry
(“Parry Dep”) at 50:23–51:4, 51:20–52:6.) Rentas

8

Gentile also did not issue any commands to
Breitkopf. (Id. at 115:12–13.)

saw the downward barrel pointing near
Breitkopf’s leg, and then kept looking to see
what was going on. (Hicks Dep. at 44:4–
46:4.) After hearing the gunshot, Hicks saw
two or three officers go down to the ground
with Breitkopf. (Hicks Dep. at 48:12–24.)
Rentas testified that, after the gunshot, the
officers were “trying to take control of
[Breitkopf],” and “[t]hey brought him down
face first.” (Rentas Dep. at 92:2–21.)
According to Cafarella, after Breitkopf went
down, Cafarella “leaned over, stretched out,
the magazine had come off the shoulder, I
grabbed it and dragged it out.” (Cafarella
Dep. at 102:6–12; see also Jaklitsch Dep. at
50:19–51:3 (testifying that, after Breitkopf
fell, Cafarella ran over, grabbed the rifle,
and pulled the strap off Breitkopf).)
Jaklitsch grabbed Cafarella by the neck and
asked him what he was doing, and told
Kiesel to keep Cafarella nearby. (Jaklitsch
Dep. at 51:3–14.) NCPD Officer Thomas
Lively (“Lively”) was attempting to
handcuff Breitkopf on the ground when
Rentas ran over and displayed his shield,
and Lively then realized he knew Breitkopf.
(Deposition of Thomas Lively (“Lively
Dep.”) at 47–49, MTA & Ramos Motion Ex.
P; Rentas Dep. at 75:7–76:20.) The officers
then began trying to save Breitkopf’s life.
(Jaklitsch Dep. at 51:14–17.)

NCPD
Officer
Keith
Jaklitsch
(“Jaklitsch”) testified that, after Anthony
was shot, officers continued showing up and
everything was “settled.” (Deposition of
Keith Jaklitsch (“Jaklitsch Dep.”) at 42:13–
14, 43:8–19, MTA & Ramos Motion Ex. K.)
Then, while walking along the curb in front
of the house, Jaklitsch heard someone say
“gun,” and he turned back towards the
house. (Id. at 47:24–48:8.) It was dark out,
but Jaklitsch saw Breitkopf in front of him,
and there was one officer to Breitkopf’s
right and another “kind of off to his left.”11
(Id. at 105:17–21, 48:10–13.) Jaklitsch did
not see any other officers within arm’s
distance of the three individuals. (Id. at
49:2–6.) Then, immediately upon turning, he
saw the officer on the right shoot Breitkopf.
(Id. at 49:11–19.)
Immediately before the gunshot, NCPD
Officer Robert Kiesel (“Kiesel”) heard a
“commotion” that “sounded like someone
was trying to get past where the officers
were on the lawn and they were trying to
stop that person from coming through.”
(Deposition of Robert Kiesel (“Kiesel
Dep.”) at 36:20–37:14, MTA & Ramos
Motion Ex. N.) Kiesel thought he heard
someone say “stop” and “gun” or “he has
got a gun.” (Id. at 54:4–16.) Hicks testified
that, after hearing “gun,” he turned around,

Less than ten minutes elapsed between
the first police contact with Anthony
DiGeronimo and Breitkopf being shot. (Pl.
Cafarella 56.1 Suppl. ¶ 59.) On February 28,
2012, the Nassau County District Attorney’s
Office issued a report on Anthony’s and
Breitkopf’s deaths, and, based on the totality
of the circumstances, declined to bring
criminal charges against Gentile for killing
Breitkopf. (See generally DA Report.)

and two others saw the shield right before and after
Breitkopf was placed in the ambulance. (See Pl.
MTA & Ramos 56.1 Counterstatement ¶ 36; Pl.
MTA & Ramos 56.1 Suppl. ¶¶ 105–07.)
11

Jaklitsch initially testified that the men were MTA
officers. (Jaklitsch Dep. at 48:14–25.) He later said,
“I don’t know if I had time to formulate an opinion,
whether it was a Nassau cop or MTA cop.” (Id. at
53:23–54:2.) Jaklitsch also could not recall how far
they were from Breitkopf—whether at arm’s length
or five or more feet. (Id. at 107:13–108:19.)

9

Sergeant Aaron Lai, there may be
“impromptu” role plays, where they “create
a scenario and just try to use some of the
guidelines, to reenact some of the guidelines
to see, and then we have a discussion as to
what if the recruit were to fire and was that
appropriate or not based on the guidelines.”
(Deposition of Aaron Lai (“Lai Dep.”) at
74:18–75:4, MTA & Ramos Motion Ex. T.)
Recruits also receive “judgmental firearms
training via the firearms training simulator,”
a computer-based program that requires the
recruit to exercise her “understanding of the
use of force guidelines, and escalating scale
of force,” in various scenarios. (MTA &
Ramos 56.1 ¶ 43.)

4. MTA Police Officer Training
a. NYPD Academy Training
i.

2004 and 2006 Training Program

Pursuant to a contractual agreement with
the City, MTAPD recruits attend a sixmonth program at the NYPD Academy,
which provides classroom and tactical
training identical to that provided to NYPD
recruits. (MTA & Ramos 56.1 ¶ 37; NYC
56.1 ¶ 6.) Recruits receive three months of
academic training and three months of
hands-on training, and the program covers
approximately forty different subjects.
(NYC 56.1 ¶¶ 3, 9.) Ramos completed the
program in 2004, and Gentile completed it
in 2006. (MTA & Ramos 56.1 ¶ 38.)

The firearms tactical training includes
close combat training, cover and
concealment, a simulator workshop,
identification of plainclothes officers in
confrontation situations, and a full day in a
tactical house and village with simulations.
(NYC 56.1 ¶ 36.) For one day during the
tactical firearms training, recruits are
lectured on confrontation situations,
including how
“to
safely resolve
confrontation[s] between members of
service both on and off duty.” (MTA &
Ramos 56.1 ¶¶ 41–42; see also NYC Motion
¶¶ 20, 21; Plaintiff’s Supplementary Facts in
Response to NYC’s Rule 56.1 Statement
(“Pl. NYC 56.1 Suppl.”) ¶ 3.) One of the
fourteen lectures is about identifying
members of the service in civilian clothes.
(Pl. MTA & Ramos Counterstatement ¶ 42.)
Recruits are instructed that the “challenging
officer”—the uniformed officer who comes
upon the scene and observes an unidentified
person—should (1) take cover to the rear of
the “confronted officer”—the officer in
plainclothes who may be armed and may be
taking police action—if possible; (2) issue
the standard challenge of “Police! Don’t
move!”; (3) request that the confronted
officer give the exact location of his or her
identification and produce that identification

Recruits are instructed to review the
NYPD Police Student’s Guide, which
addresses the use of force, including the
“escalating scale of force” and the
circumstances in which using deadly
physical force is appropriate. (NYC 56.1
¶ 13; Police Student’s Guide: 2004 Use of
Force Chapter, NYC Motion Ex. F; Police
Student’s Guide: 2006 Use of Force
Chapter, NYC Motion Ex. G; MTA &
Ramos 56.1 ¶ 39.) The NYPD’s standard for
use of force is more restrictive than the
penal law standard. (NYC 56.1 ¶ 14.)
Recruits are taught (1) to use firearms as a
last resort, and to use only the minimal
amount of force necessary in all cases; (2) to
use deadly force only if there is no other
way to protect the officer or another person
against imminent death or serious physical
injury; and (3) where feasible and consistent
with personal safety, to give some warning
before shooting. (Id. ¶ 16.) Recruits also
learn that the standard challenge in armed
confrontations is: “Police! Don’t move!” (Id.
¶ 17.) The subject matter is covered in
classes
and
includes
audiovisual
presentations and role play scenarios. (MTA
& Ramos ¶ 40.) According to NYPD
10

been taught may create an inappropriate
response on the street and is a shortcoming
in the NYPD recruit-training program.” (Id.
at xvii.) RAND also noted that, during the
“complex-skill training events,” instructors
did not respond to recruit error by
demonstrating
the
correct
behavior
themselves. (Id. at 27.)

slowly; and (4) examine the confronted
officer’s identification to ensure that it is
valid. (NYC 56.1 ¶ 23.) The confronted
officer is instructed to (1) remain
motionless, even if it means that a fleeing
suspect escapes; (2) obey all directions from
the challenging officer; (3) inform the
challenging officer of the location of
identification before moving; and (4)
produce the identification slowly, in a
controlled manner, without unnecessary
movement. (Id. ¶ 24.) Recruits are instructed
to follow the confrontation procedure in
incidents involving potential officers from
any law enforcement agency. (Id. ¶ 25.) The
material taught in lectures is reinforced in
scenario training in the tactics house and
tactics village. (MTA & Ramos 56.1 ¶ 42.)

RAND issued several recommendations
to improve the training. (E.g., id. at xviii–
xix.) The MTA was unaware of the report
and its recommendations before Breitkopf’s
death. (See Pl. NYC 56.1 Suppl. ¶ 17.)
iii.

In 2010, a task force empaneled by thenNew York State Governor David Paterson
examined issues and implications arising
from police-on-police shootings, including
confrontations with plainclothes officers.
(Reducing Inherent Danger: Report of the
Task Force on Police-on-Police Shootings
(“Task Force Report”), NYC Opp. Ex. Z.)
Governor Paterson empaneled the Task
Force after the shooting deaths of two offduty Black police officers in the state in
2008 and 2009. (Id. at 1.) According to the
report, there were twenty-six fatal police-onpolice, mistaken-identity shootings from
1971 to 2009. (Id. at ii.) From 2006 to 2010,
there were three fatal mistaken-identity
police-on-police shootings in New York.
(NYC’s Counterstatement in Response to
Plaintiff’s Supplementary Rule 56.1
Statement (“NYC 56.1 Suppl. Opp.”) ¶ 22.)
None of these, however, involved the MTA.

Ramos and Gentile completed the
firearms and tactical training. (Id. ¶ 62–63.)
ii.

New York State Task Force on
Police-on-Police Shootings

2008 RAND Evaluation

In 2007, then-NYPD Commissioner
Raymond Kelly charged the RAND
Corporation (“RAND”) to undertake a
comprehensive review of the NYPD’s
firearms training. (Pl. NYC 56.1 Suppl. ¶ 9;
see Evaluation of the New York City Police
Department Firearm Training and FirearmDischarge Review Process (“RAND
Report”), NYC Opp. Ex. W.) With respect
to confrontation training, role-playing
workshops, and simulations, RAND found
that “[t]he NYPD engages in a substantial
amount of complex-skill training using roleplaying exercises,” but concluded, inter alia,
that “recruit training could be significantly
improved by increasing the quality, number,
and use of scenario-based training events
that each recruit experiences.” (RAND
Report, at 31.) RAND noted that the
NYPD’s “failure to ensure that students
have internalized the right way to approach
situations
by
providing
sufficient
opportunities to practice what they have

The Task Force issued a series of
recommendations to help prevent police-onpolice shootings, including (1) developing
state and national protocols for police-onpolice confrontations, such as a suggestion
that confronted officers do not move or
reflexively spin and instead identify
themselves loudly while using specific
11

policy delineates the responsibilities of the
challenging and confronted officers in a
police-on-police encounter, emphasizing
that “[i]n any confrontation, the burden of
proving identity rests on the confronted
officer, whether on or off-duty; however, the
challenging
officer
also
has
the
responsibility to use sound tactics and
judgment approaching the situation.”
(MTAPD Manual, MTA & Ramos Motion
Ex. BB, at 0189.) When confronting an
unidentified armed person who may be a
law enforcement officer, the MTAPD officer
should identify herself as an officer, attempt
to verify the situation if the other person
states that she is an officer, and remain alert
until completely satisfied with the
identification. (Id. at 0190.)

language, a suggestion that challenging
officers not stereotype and clearly shout and
identify themselves, and a suggestion that
the challenging officer broaden her focus
from the gun to assess the situation; (2)
increasing the use of simulations and roleplaying; and (3) developing testing and
training to reduce unconscious racial bias.
(Task Force Report, at 54–67.)
b. MTAPD In-Service Training
After MTAPD officers graduate from
the Academy, the MTA conducts an
orientation regarding the policing of railroad
facilities, and three months of field training
in the MTA’s geographical regions. (MTA
& Ramos 56.1 ¶ 44.) Police-on-police
confrontations are discussed (id. ¶ 45), but
the MTA conducted no related field or inservice scenario training before March 2011
(Pl. MTA & Ramos Counterstatement ¶ 45).

According to the MTA, the policies are
reinforced annually during mandatory
firearms requalification. (MTA & Ramos
56.1 ¶ 50.) Plaintiff, on the other hand,
contends that, before Breitkopf’s death, the
MTAPD did not provide hands-on training
on all of these policies, including the
plainclothes officer and police-on-police
confrontations policies.12 (E.g. Pl. MTA &
Ramos 56.1 Counterstatement ¶¶ 45, 48,
50.) Specifically, according to the MTA,
officers are lectured on the use of deadly
physical force and receive a written
examination to assure they have mastered
the material. (Id. ¶ 51.) For example, the
“Deadly Physical Force” Lesson Plan
delineates a progression of force that
officers should follow, and provides that
“[a] stage in the progression may be skipped
due the circumstances,” although “[i]f
possible, the police officer should give the

All officers receive the MTAPD manual,
which details a “use of force” policy. (MTA
& Ramos 56.1 ¶ 46.) The policy instructs
officers that “[t]he primary duty of Members
is to preserve human life,” explains the “use
of force continuum,” and admonishes that
deadly physical force may be used only to
“protect the Member or others from what is
reasonably believed to be a threat of
imminent death or serious physical injury.”
(Id. ¶ 47.) It provides that, “[w]here feasible,
and consistent with personal safety,” the
officer should identify herself as an officer
and “give some warning prior to discharging
a firearm in a deadly physical force
situation.” (MTAPD Manual, MTA &
Ramos Motion Ex. AA, at 0169.)
The manual also contains a policy on
“plainclothes police encounters,” which
establishes “guidelines to assist Members in
safely resolving confrontations between law
enforcement personnel both on and off duty
where a police officer’s identity is not
clear.” (MTA & Ramos 56.1 ¶ 48.) The

12

MTAPD Deputy Chief John D’Agostino
acknowledged the importance of training officers on
how to handle plainclothes police encounters and
agreed that more training would better equip the
officers to do so. (NYC 56.1 Suppl. ¶ 25.)

12

subject the opportunity to comply at each
stage.” (MTAPD Lesson: Deadly Physical
Force, MTA & Ramos Opp. Ex. DD, at
Bates #207–08.) Plaintiff emphasizes that
the MTAPD Manual instructs officers who
challenge an unidentified armed person to
“[i]dentify [them]self in a loud clear voice
by stating ‘Police! Don’t move.’” (Pl. MTA
& Ramos 56.1 Counterstatement ¶ 50.) In
addition, all MTA officers must complete a
“course of fire” on the firearms range,
consisting of multiple drills and instruction
on cover, concealment, and tactics. (MTA &
Ramos 56.1 ¶ 52.) The drills are conducted
at various distances and include “police
challenge” or “shoot/don’t shoot” exercises
in which the officer must determine whether
a target, which flips to one side or the other,
poses a deadly threat. (Id. ¶ 53.) According
to MTAPD Training Sergeant Glenn Pleeter
(“Pleeter”), in one drill, the officer is trained
to fire if the officer sees a weapon when the
target flips; no verbal command is necessary
beforehand. (Deposition of Glenn Pleeter
(“Pleeter Dep.”) at 77:2–78:2, MTA &
Ramos Motion Ex. V; see also id. at 56:14–
25 (stating that officer is told “obviously to
shoot, if there is a gun,” when the target
flips).)13 If the target is unarmed, however,

the officer should cover the target; yell
“Police, don’t move!”; and refrain from
shooting. (MTA & Ramos 56.1 ¶ 54.)
5. Causes of Action
Plaintiff brings six counts for relief:
(1) 42 U.S.C. § 1983 claims against Gentile
and Ramos for violating Breitkopf’s
right under the Fourth and Fourteenth
Amendments (First Amended Complaint
(“FAC”) ¶¶ 22–53, Docket No. 39)14;
(2) “Civil rights” claims against the MTA
and NYC for failing to adequately train
Gentile and Ramos (FAC ¶¶ 54–82);
(3) State law negligence, wrongful death,
and GML § 205-e claims against the
DiGeronimos (FAC ¶¶ 83–88);

must give the unidentified armed person the
opportunity to identify himself or herself and comply
to help deescalate the situation in case the person is a
plainclothes or off-duty police officer. Despite
receiving such training, however, Gentile concluded
it was not feasible. Thus, the dispute regarding this
drill does not raise a genuine issue of material fact
that precludes summary judgment.
14

Allegations of the use of excessive force generally
are analyzed under the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll
claims that law enforcement officers have used
excessive force—deadly or not—in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard, rather
than under a ‘substantive due process’ approach.”);
Taylor v. Nassau Cnty., 11-CV-0934 (SJF), 2012 WL
5472554, at *1 n.2 (E.D.N.Y. Mar. 5, 2012)
(deciding to address excessive force claim brought
under Fourth and Fourteenth Amendment under
Fourth Amendment only). Plaintiff did not dispute
that the due process standard is inapplicable. (See
MTA & Ramos Motion, at 14.) Therefore, the Court
concludes that plaintiff has abandoned her § 1983
claims to the extent they are based on violations of
the Fourteenth Amendment, and, in any event, the
Court concludes that any such claim should be
analyzed under the Fourth Amendment.

13

As discussed in more detail infra, although
plaintiff’s counsel attempts to argue that this drill
during the annual firearms requalification is deficient
because it does not allow for a verbal warning, the
Court disagrees. Plaintiff has pointed to no evidence
in the record that the gun is displayed during the flip
drill in a manner that would make a warning feasible.
In other words, if the target is pointing a gun at the
officer when it flips, no warning would be feasible or
necessary. Moreover, there is no testimony from any
MTAPD member that officers were instructed to
disregard the guidelines in the MTAPD Manual, or
that they believed the firearms requalification drill
procedures trumped the guidelines in the Manual.
Gentile also has not testified that he decided to shoot
Breitkopf immediately because of his experience and
training during the firearms requalification. In other
words, Gentile acknowledged that he knew from his
training that, where feasible, the challenging officer

13

(4) State law negligence, wrongful death,
and GML § 205-e claims against the
Estate (FAC ¶¶ 89–92);
(5) State law negligence, wrongful death,
and GML § 205-e claims against
Cafarella (FAC ¶¶ 93–103); and
(6) State law battery, wrongful death, and
GML § 205-e claims against Gentile and
Ramos, and against the MTA based on
respondeat superior (FAC ¶¶ 104–14).

a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

B. Procedural Background
Plaintiff commenced this action on
March 6, 2012, and filed an amended
complaint on July 17, 2012. In their
respective answers to both the original and
amended complaints, each defendant
asserted
cross-claims
against
other
defendants. Cafarella moved for summary
judgment on December 2, 2013. The
DiGeronimos filed their motion on
December 6, 2013; Gentile, the MTA and
Ramos, and NYC filed their motions on
December 13, 2013. Plaintiff filed her
oppositions on March 7, 2014. The
DiGeronimos filed their reply on April 2,
2014, while the other moving defendants
filed their replies on April 4, 2014. The
Court held oral argument on May 5, 2014.
Plaintiff filed a sur-reply to the City on May
7, 2014. The Court has fully considered the
submissions of the parties.
II.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). “A party asserting that
14

properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
III.

Further, to hold a municipality liable under
Section 1983, a plaintiff must show: “(1) an
official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a
constitutional right.” Torraco v. Port Auth.
of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.
2010) (citations omitted); see also Monell v.
Dep’t of Social Servs. of N.Y.C., 436 U.S.
658, 694 (1978).
It is undisputed that Gentile and Ramos
acted under color of state law. The questions
presented, therefore, are: (1) whether
Ramos’s and Gentile’s conduct deprived
Breitkopf of his Fourth Amendment rights
when (a) Ramos grabbed Breitkopf after
hearing Cafarella yell “gun” (or “drop your
weapon”) and (b) Gentile shot Breitkopf
after seeing his interaction with Ramos; (2)
whether, in the alternative, Ramos and
Gentile are entitled to qualified immunity;
(3) whether the MTA was deliberately
indifferent to the need to train its officers on
how to identify and properly confront
plainclothes officers; and (4) whether the
City is liable under Section 1983 because
the MTAPD officers were trained at the
Academy. The Court also addresses the
disputed negligence claim against the City.

DISCUSSION

Plaintiff’s theories of liability under
federal and state law differ from defendant
to defendant. Thus, the Court proceeds by
addressing each claim separately. For the
reasons set forth below, the Court concludes
that genuine issues of material fact preclude
summary judgment on plaintiff’s excessive
force claim against Gentile, the corollary
state law assault and battery claims against
Gentile and the MTA, and the negligence
and GML § 205-e claims against Cafarella.

1. Excessive Force and Qualified
Immunity

A. 42 U.S.C. § 1983 Claims

The officers argue that the excessive
force claims cannot survive summary
judgment because the force employed—
Ramos grabbing Breitkopf and the rifle, and
Gentile shooting Breitkopf—was objectively
reasonable. In the alternative, the officers
contend they are entitled to qualified
immunity. As set forth below, the Court
concludes that there is insufficient evidence
in the record, even when construed most
favorably to plaintiff, for the excessive force
claim against Ramos to survive summary
judgment both on the merits and on
qualified immunity grounds. There is

Plaintiff brings 42 U.S.C. § 1983 claims
against Gentile, Ramos, the MTA, and the
City. To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, (2) by a person acting under the color
of state law. 42 U.S.C. § 1983; see also
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999). Section 1983 does not itself create
substantive rights; instead, it offers “a
method for vindicating federal rights
elsewhere conferred.” Patterson v. Cnty. of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
15

the circumstances, “including the severity of
the crime at issue, whether the suspect posed
an immediate threat to the safety of others
and whether he is actively resisting arrest.”
Sullivan v. Gagnier, 225 F.3d 161, 165 (2d
Cir. 2000) (citations omitted). “The calculus
of reasonableness must embody allowance
for the fact that police officers are often
forced to make split-second judgments—in
circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force
that is necessary in a particular situation.”
Graham, 490 U.S. at 396–97.

sufficient evidence, however, if plaintiff’s
evidence is credited and all reasonable
inferences are drawn in her favor, for the
claim against Gentile to survive, because
there is a genuine dispute of material fact as
to whether Gentile’s split-second decision to
shoot Breitkopf was objectively reasonable.
Similarly, the disputed issues of fact
concerning the circumstances surrounding
the shooting preclude summary judgment on
the qualified immunity issue.
a. Excessive Force Standard
A police officer’s use of force is
excessive, in violation of the Fourth
Amendment,
“if
it
is
objectively
unreasonable ‘in light of the facts and
circumstances confronting [the officer],
without regard to [the officer’s] underlying
intent or motivation.’” Maxwell v. City of
New York, 380 F.3d 106, 108 (2d Cir. 2004)
(quoting Graham, 490 U.S. at 397). More
specifically, “[d]etermining whether the
force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment
requires a careful balancing of the nature
and quality of the intrusion on the
individual’s Fourth Amendment interests
against the countervailing governmental
interests at stake.” Graham, 490 U.S. at 396
(internal quotation marks omitted). Physical
force is often necessary, and thus, “not every
push or shove” is unconstitutionally
excessive, “even if it may later seem
unnecessary in the peace of a judge’s
chambers.” Maxwell, 380 F.3d at 108
(internal brackets, citation, and quotation
marks omitted).

There may be certain circumstances
where the alleged unconstitutional act and
injury are so de minimis that they cannot
constitute a constitutional violation as a
matter of law. See, e.g., Vogeler v. Colbath,
No. 04–CV–6071 (LMS), 2005 WL
2482549, at *11 (S.D.N.Y. Oct. 6, 2005)
(granting summary judgment for defendant
where plaintiffs failed to demonstrate that
alleged action by police officer “was any
more than de minimis force exerted during
the course of an arrest following the raid of
a suspected drug trafficking locale”);
Johnson v. Police Officer # 17969, No. 99–
CV–3964 (NRB), 2000 WL 1877090, at *5
(S.D.N.Y. Dec. 27, 2000) (dismissing
excessive force claim based on admission
that plaintiff resisted arrest and only alleged
minor injuries); cf. Tierney v. Davidson, 133
F.3d 189, 199 (2d Cir. 1998) (finding
qualified immunity existed for excessive
force claim under Due Process Clause,
where claim was related to police conduct
toward individuals present during execution
of search, because force used “was de
minimis, necessary, appropriate, and
benign”); Griffin v. Crippen, 193 F.3d 89,
92 (2d Cir. 1999) (noting, in addressing
excessive force claim under Eighth
Amendment, that “de minimis uses of force
generally do not suffice to state a
constitutional claim”). A plaintiff, however,
need not sustain a severe injury to maintain

“The ‘reasonableness’ of a particular use
of force must be judged from the perspective
of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396; accord Jones v.
Parmley, 465 F.3d 46, 61 (2d Cir. 2006).
The court must inquire into the totality of
16

he made the split-second decision to employ
deadly force.’” O’Bert ex rel. Estate of
O’Bert v. Vargo, 331 F.3d 29, 36–37 (2d
Cir. 2003) (quoting Salim v. Proulx, 93 F.3d
86, 92 (2d Cir. 1996), and citing Graham,
490 U.S. at 396; Scott v. Henrich, 39 F.3d
912, 914 (9th Cir. 1994)). Therefore, “[t]he
objective reasonableness test will not be met
if, on an objective basis, it is obvious that no
reasonably competent officer would have
concluded in that moment that . . . use of
deadly force was necessary.” Id. at 37
(internal citation and quotation marks
omitted); see also Keene v. Schneider, 350
F. App’x 595, 596 (2d Cir. 2009)
(explaining that, even if the force used was
objectively unreasonable, “an officer may
still be eligible for qualified immunity if it
was objectively reasonable for the officer to
believe that her action did not violate clearly
established law” (citing Salim, 93 F.3d at
89) (emphasis in original)); Salim, 93 F.3d
at 89 (“The objective reasonableness test
[for qualified immunity purposes] is met if
‘officers of reasonable competence could
disagree’ on the legality of the defendant’s
actions.” (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986))). This is because
qualified immunity “protects officers from
the ‘sometimes hazy border between
excessive and acceptable force.’” Keene,
350 F. App’x at 596 (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)).

a claim that the use of force was objectively
unreasonable under the Fourth Amendment.
See Maxwell, 380 F.3d at 108 (“[W]e have
permitted a plaintiff’s claim to survive
summary judgment on allegations that,
during the course of an arrest, a police
officer twisted her arm, ‘yanked’ her, and
threw her up against a car, causing only
bruising.” (citing Robison v. Via, 821 F.2d
913, 924–25 (2d Cir. 1987))); Weather v.
City of Mount Vernon, No. 08 Civ.
192(RPP), 2011 WL 1046165, at *11
(S.D.N.Y. Mar. 22, 2011) (“Under the law,
police are not permitted to use any degree of
force
in
all
instances—in
some
circumstances, no use of force is reasonable
because none is required.”), aff’d, 474 F.
App’x 821 (2d Cir. 2012); see also Hayes v.
N.Y.C. Police Dep’t, 212 F. App’x 60, 62
(2d Cir. 2007) (“[W]e have permitted claims
to survive summary judgment where the
only injury alleged is bruising.”); Davenport
v. Cnty. of Suffolk, No. 99-CV-3088 (JFB),
2007 WL 608125, at *11 (E.D.N.Y. Feb. 23,
2007) (use of force causing de minimis
injury could be excessive if “gratuitous”).
With respect to deadly force, “an
officer’s decision to use deadly force is
objectively reasonable only if the 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. Estate of Cooper v. Breen,
352 F.3d 756, 762 (2d Cir. 2003) (internal
quotation marks omitted); see also
Tennessee v. Garner, 471 U.S. 1, 11 (1985)
(“Where the suspect poses no immediate
threat to the officer and no threat to others,
the harm resulting from failing to apprehend
him does not justify the use of deadly force
to do so.”). In such cases, “the objective
reasonableness inquiry, for purposes of
either Fourth Amendment liability or
qualified immunity, ‘depends only upon the
officer’s knowledge of circumstances
immediately prior to and at the moment that

b. Qualified Immunity Standard
According to the Second Circuit,
qualified immunity shields a government
official from liability for civil damages if the
official’s “conduct did not violate plaintiff’s
clearly established rights, or if it would have
been objectively reasonable for the official
to believe that [her] conduct did not violate
plaintiff’s rights.” Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 385 (2d Cir. 2003);
see also Fielding v. Tollaksen, 257 F. App’x
400, 401 (2d Cir. 2007) (setting forth same).
17

City of New York, 261 F.3d 229, 236 (2d
Cir. 2001).15

Qualified immunity shields an official even
if her conduct resulted from “a mistake of
law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009)
(quoting Groh v. Ramirez, 540 U.S. 551,
567 (2004) (Kennedy, J., dissenting)). As
the Second Circuit has noted, “[t]his
doctrine is said to be justified in part by the
risk that the ‘fear of personal monetary
liability and harassing litigation will unduly
inhibit officials in the discharge of their
duties.’” McClellan v. Smith, 439 F.3d 137,
147 (2d Cir. 2006) (quoting Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999)).
Thus, qualified immunity is not merely a
defense, but is “an entitlement not to stand
trial or face the other burdens of litigation.”
Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). Accordingly, a court should
determine the availability of qualified
immunity “at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991).

With respect to summary judgment, the
Second Circuit has held that a court should
cloak a defendant with qualified immunity at
this juncture “only . . . when a court finds
that an official has met his or her burden
demonstrating that no rational jury could
conclude ‘(1) that the official violated a
statutory or constitutional right, and (2) that
the right was clearly established at the time
of the challenged conduct.’” Coollick v.
Hughes, 699 F.3d 211, 219 (2d Cir. 2012)
(quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011)); see also Ford v.
McGinnis, 352 F.3d 582, 597 (2d Cir. 2003)
(holding that finding qualified immunity at
summary judgment stage is appropriate
“only ‘if the court finds that the asserted
rights were not clearly established, or if the
evidence is such that, even when it is viewed
in the light most favorable to the plaintiff[]
and with all permissible inferences drawn in
[the plaintiff’s] favor, no rational jury could
fail to conclude that it was objectively
reasonable for the defendants to believe that
they were acting in a fashion that did not
violate a clearly established right’” (quoting
Williams v. Greifinger, 97 F.3d 699, 703 (2d
Cir. 1996))); see also Stancuna v. Sherman,
563 F. Supp. 2d 349, 356 (D. Conn. 2008)
(“Here, the court finds that summary
judgment on qualified immunity grounds is
inappropriate. As the Second Circuit has
held, when a motion for summary judgment
is made in the context of a qualified
immunity defense, the question of whether
the factual disputes are material is even
more critical. As noted above, there are

“A right is clearly established when the
contours of the right [are] sufficiently clear
that a reasonable official would understand
that what [she] is doing violates that right. . .
. The unlawfulness must be apparent.”
Connell v. Signoracci, 153 F.3d 74, 80 (2d
Cir. 1998) (quotation marks omitted). Even
where the plaintiff’s rights are clearly
established,
however,
the
qualified
immunity defense protects the government
actor if it was objectively reasonable for her
to believe her actions were lawful at the time
of the challenged act. Lennon v. Miller, 66
F.3d 416, 420 (2d Cir. 1995). “The objective
element of this test requires the court to look
beyond the generalized constitutional
protection, such as the right to be free of
unreasonable searches and seizures, and to
determine whether the law is clearly
established in a more particularized sense,”
given the specific factual situation with
which the officer is confronted. Kerman v.

15

“In a case involving the use of deadly force,” as
here with respect to Gentile’s conduct, “only the
objective reasonableness branch of this test presents
any possibility for a qualified immunity defense.”
O’Bert, 331 F.3d at 36 (citing Salim, 93 F.3d at 91).

18

issues of material fact in this case that this
court may not decide. These issues of fact
are critical to determining whether Sherman
was operating under a reasonable belief as to
what kind of search he was permitted to
conduct.” (internal citation, alteration, and
quotation marks omitted)).16

created the need to use [deadly] force by
their actions prior to the moment of seizure
is irrelevant. . . .”)—was de minimis and
cannot support an excessive force claim.17
It is uncontroverted that Ramos only
employed force against Breitkopf when,
after hearing Cafarella say “gun” or “drop
the weapon” (the actual phrase being
immaterial to assessing Ramos’s liability),
Ramos saw an armed man in plainclothes
and, in an attempt to “subdue what [he]
assumed was a threat,” grabbed the man’s
right shoulder and grasped for the rifle,
which was pointed downward at that
moment. (MTA & Ramos 56.1 ¶¶ 26–28.)
There is no evidence that Ramos employed
or directed anyone to employ deadly force,
continued to employ physical force despite
hearing someone identify Breitkopf or
seeing Breitkopf submit to his authority, or
injured Breitkopf by grabbing him.

c. Application to Ramos’s Actions
Ramos argues that summary judgment is
appropriate because his actions were
objectively reasonable and, regardless, any
injury to Breitkopf was de minimis. Plaintiff
counters that a reasonable jury could hold
Ramos liable because his “actions in
grabbing Breitkopf and attempting to wrest
his rifle were precipitous and not
‘objectively reasonable’ since Officer
Breitkopf’s gun was pointed down,”
Breitkopf had passed several NCPD officers
without issue, and Ramos did not issue a
warning. (MTA & Ramos Opp., at 18.)
Plaintiff claims that this “precipitous act . . .
was both a catalyst and a proximate [cause]
for Officer Gentile negligently discharging
his weapon.” (Id.) Viewing the evidence and
drawing all reasonable inferences in the light
most favorable to plaintiff, the Court
concludes that no rational jury could find
that Ramos acted unreasonably under the
circumstances. Further, any injury to
Breitkopf from Ramos’s seizure alone—
irrespective of Gentile’s independent
conduct in response to Ramos’s actions, cf.
Schulz v. Long, 44 F.3d 643, 649 (8th Cir.
1995) (“[E]vidence that [the officers]

Given these uncontroverted facts, even
drawing all reasonable inferences in
plaintiff’s favor, no rational jury could find
that Ramos’s de minimis use of force was
objectively
unreasonable.
Compare
Rodriguez v. Vill. of Ossining, 918 F. Supp.
2d 230, 238 (S.D.N.Y. 2013) (granting
summary judgment to officer who grabbed
plaintiff’s arm to try to remove her from
vehicle to arrest her where there was no
allegation that officer hurt plaintiff in any
way besides scratching her, scratch was not
alleged to have been remotely painful or
serious, and plaintiff conceded that officer
had probable cause), and Jennejahn v. Vill.
of Avon, 575 F. Supp. 2d 473, 476, 481
(W.D.N.Y. 2008) (where probable cause
existed for arrest, finding assertions about

16

District courts have “discretion to decide which of
the two prongs of qualified-immunity analysis to
tackle first.” al-Kidd, 131 S. Ct. at 2080; see
Pearson, 555 U.S. at 236 (explaining that every court
of appeals or district court judge is “permitted to
exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances
in the particular case at hand”).

17

Plaintiff does not argue Ramos can be held liable
for Gentile’s decision to use deadly force, and the
Court does not conclude otherwise. The officers
acted independently.

19

particularly where force is applied to a
suspect who is not fleeing or resisting, and
who has been overcome, cannot be
considered constitutionally reasonable.”).

arresting officer’s conduct—that officer
“violently grabbed [the plaintiff’s] arm, spun
him around, released his arm and forcefully
grabbed his shoulders”—“coupled with the
absence of any injuries therefrom”
insufficient
to
withstand
summary
judgment), with Murray v. Williams, No.
05–CV–9438 (NRB), 2007 WL 430419, at
*7 (S.D.N.Y. Feb. 7, 2007) (refusing to find
that alleged force was de minimis where
plaintiff alleged laceration to his lower lip, a
bloody nose, pain and suffering, and mental
anguish), Johnson v. City of New York, No.
05–CV–2357 (SHS), 2006 WL 2354815, at
*5 (S.D.N.Y. Aug. 14, 2006) (denying
summary judgment on claim of excessive
force during search and noting that “[w]hile
not every push or shove violates the Fourth
Amendment, . . . there surely would be no
objective need to ‘stomp’ and ‘kick’ an
individual already under police control”
(citations and quotations omitted)), and
Pierre–Antoine v. City of New York, No. 04–
CV–6987 (GEL), 2006 WL 1292076, at *4
(S.D.N.Y. May 9, 2006) (holding that
repeatedly striking subdued individual
would constitute objectively unreasonable
use of force under Fourth Amendment); see
also Lemmo v. McKoy, No. 08-CV-4264
(RJD), 2011 WL 843974, at *5 (E.D.N.Y.
Mar. 8, 2011) (“Injuries held to be de
minimis for purposes of defeating excessive
force claims include short-term pain,
swelling, and bruising[;] brief numbness
from tight handcuffing. . .[;] and two
superficial scratches with a cut inside the
mouth.” (citations omitted)); Hayes v. City
of Indianapolis, No. 1:08-cv-006-DFH-JMS,
2009 WL 700232, at *4 (S.D. Ind. Mar. 16,
2009) (“[A] police officer may not continue
to use force against a suspect who is
subdued and complying with the officer’s
orders.”); Norris v. Bain, No. 1:04–CV–
1545, 2006 WL 753131, at *14 (S.D. Ind.
Mar. 21, 2006) (“[It is] well established that
the use of force unnecessary for an arrest,

Plaintiff’s
counterarguments
are
unavailing. She relies on the fact that
Breitkopf had passed other NCPD officers
before encountering Ramos. Yet, there is no
evidence from which a reasonable jury could
conclude that Ramos had seen Breitkopf
before Cafarella’s “gun” announcement
changed the circumstances confronting
Ramos. See Graham, 490 U.S. at 397
(explaining that a police officer’s
application of force is excessive if it is
objectively unreasonable “in light of the
facts and circumstances confronting [the
officer], without regard to [the officer’s]
underlying intent or motivation”). Plaintiff
also argues that, instead of grabbing
Breitkopf, Ramos should have pulled his
weapon and commanded Breitkopf not to
move. Although that also would have been
an objectively reasonable response, the
existence of an alternative approach does not
render the one chosen by Ramos to be
objectively unreasonable.18 Given the
uncontroverted facts, no rational jury could
find Ramos’s de minimis use of force
objectively unreasonable.
In sum, in light of the facts and
circumstances confronting Ramos, the Court
concludes that no reasonable jury could find
that Ramos lacked a “reasonable basis to
think that the person stopped pose[d] a
18

Moreover, plaintiff points to no authority holding
that it is objectively unreasonable for an officer to
confront an armed, unidentified individual simply
because that individual’s weapon is pointing
downward, or that an officer must issue a verbal
warning prior to using non-deadly force to neutralize
a potential threat. Thus, as discussed infra, the Court
concludes in the alternative, that Ramos’ conduct in
this case would be protected by qualified immunity.

20

border between excessive and acceptable
force.’” Keene, 350 F. App’x at 596
(quoting Brosseau, 543 U.S. at 198).

present physical threat to” the officers at the
scene or others, or that Ramos took more
than the “necessary measures . . . to
neutralize the threat.” United States v.
Newton, 369 F.3d 659, 674 (2d Cir. 2004);
see also James v. Chavez, 830 F. Supp. 2d
1208, 1236 (D.N.M. 2011) (“To avoid a
‘Monday morning quarterback’ approach,
the Fourth Amendment does not require the
use of the least, or even a less forceful or
intrusive alternative to effect custody, so
long as the use of force is reasonable under
Graham v. Connor.”).

Here, whether a different approach may
have been “preferable,” as plaintiff’s
counsel framed it at oral argument, does not
create a genuine dispute of material fact as
to whether no other reasonably competent
officer would believe it was lawful to
respond as Ramos did. In other words, it is
clear that officers of reasonable competence
could disagree as to the legality of Ramos’s
actions—namely, whether it was unlawful to
grab an armed man when someone else yells
gun and the armed man is in close proximity
to the officer—especially in light of the
split-second nature of the decision and the
de minimis force used by Ramos. Thus, in
the alternative, the Court concludes that
Ramos is entitled to summary judgment on
qualified immunity grounds.

Moreover, even assuming arguendo that
Ramos used objectively unreasonable force,
his belief in the lawfulness of his actions, in
light of the circumstances before him—
including, inter alia, the yelling of “gun”
and the proximity of the armed man to
him—was objectively reasonable. See
Keene, 350 F. App’x at 596 (“Even if the
force is objectively unreasonable, an officer
may still be eligible for qualified immunity
if it was objectively reasonable for the
officer to believe that her action did not
violate clearly established law.” (emphasis
in original) (citing Salim, 93 F.3d at 89));
accord DiGennaro v. Town of Gates Police
Dep’t, No. 07-CV-6426 CJS, 2013 WL
3097066, at *14 (W.D.N.Y. June 18, 2013);
cf. Jackson v. City of New York, 939 F.
Supp. 2d 235, 257–58 (E.D.N.Y. 2013)
(“Although an officer relying on a fellow
officer’s report would have been reasonable
in mistakenly believing he had probable
cause to initiate an arrest for reported—not
observed—criminality, no reasonable officer
could have believed that using any force
whatsoever against Plaintiff was lawful
under the circumstances where Officer
Johnston did not describe any need for force
and where Officer Dammacco did not
observe any criminal activity by Plaintiff.”).
As the Supreme Court and Second Circuit
have emphasized, “qualified immunity
protects officers ‘from the sometimes hazy

Accordingly, the Court grants summary
judgment to Ramos on the excessive force
claim against him under Section 1983.19

19

Because claims for battery under New York law
are judged under the Fourth Amendment’s objective
reasonableness standard, e.g., Crews v. Cnty. of
Nassau, No. 06-CV-2610 (JFB)(GRB), 2014 WL
558696, at *17 (E.D.N.Y. Feb. 11, 2014); Gilliard v.
City of New York, No. 10-CV-5187 (NGG)(CLP),
2013 WL 521529, at *10 (E.D.N.Y. Feb. 11, 2013),
the Court also grants summary judgment to Ramos
on the state law battery claim. This determination
also disposes of plaintiff’s wrongful death claim
against Ramos, because “[t]o succeed on a cause of
action to recover damages for wrongful death, the
decedent’s personal representative must establish,
inter alia, that the defendant’s wrongful act, neglect,
or default caused the decedent’s death.” Eberts v.
Makarczuk, 861 N.Y.S.2d 731, 732 (N.Y. App. Div.
2008); see also Chong v. N.Y.C. Transit Auth., 441
N.Y.S.2d 24, 25–26 (N.Y. App. Div. 1981) (defining
elements of wrongful death claim as: (1) death of a
human being, (2) negligence of a defendant causing
death, (3) survival of distributees suffering pecuniary

21

d. Application to Gentile’s Actions

It is undisputed that Breitkopf arrived
after the “slow down” order and approached
in plainclothes while carrying an M4 rifle.
However, there is a factual dispute as to
whether Breitkopf’s shield was visible
before Gentile fired his weapon. Although
Gentile argues this fact is uncontroverted
because no witness testified that the shield
was visible beforehand, the Court disagrees.
Rentas and other individuals did see
Breitkopf’s shield around his neck after he
began receiving medical attention at the
scene. (See Pl. MTA & Ramos 56.1
Counterstatement ¶ 36.) Although it is
possible the shield only became visible once
Breitkopf’s garments had been cut open for
treatment (thereby exposing his neck and
torso), that is not the only reasonable
inference that could be drawn from the
factual record. A rational jury could
reasonably infer the shield was visible
before the shooting, but just not observed by
other officers given how rapidly the events
unfolded. This disputed issue, regarding
whether Breitkopf had visible identification
and whether Gentile had information
available showing that the victim was a
police officer, is certainly material to
assessing the objective reasonableness of
Gentile’s conduct, and, thus, must be
resolved by the jury. Compare Young v. City
of Providence, 404 F.3d 4, 14 (1st Cir. 2005)
(off-duty officer was yelling “police,
police,” or “police, get out of the way,” and
“freeze,” and witnesses understood he was
an officer by his verbal commands and
behavior), and Ngo, 2006 WL 1579873, at

Gentile argues that no reasonable jury
could find that the use of deadly force was
objectively unreasonable, because Breitkopf
approached the scene alone and in
plainclothes while carrying the M4 rifle, did
not wear a visible shield, did not identify
himself when confronted by Ramos and two
NCPD officers, and moved his rifle in such
a way that it pointed to people at the scene.
In most friendly-fire cases, disputed issues
of fact preclude a determination on summary
judgment as to whether the shooting
officer’s
actions
were
objectively
reasonable, or as to whether the officer is
entitled to qualified immunity. See, e.g., Ngo
v. Stoolie, Civ. No. 03-3376, 2006 WL
1579873, at *7 (D. Minn. June 2, 2006) (“In
cases involving a police officer shooting
another police officer, courts have generally
concluded that the shooting officer is not
entitled to qualified immunity because the
court cannot say, as a matter of law, that the
shooting officer made a reasonable mistake
in shooting a fellow officer; courts allow a
jury to decide whether the shooting officer’s
actions were objectively reasonable.”)
(collecting cases). The instant case is
similarly one where the Fourth Amendment
claim against Gentile cannot be resolved on
summary judgment. As set forth below, the
Court concludes that genuine issues of
material fact preclude a finding at this
juncture as to the objective reasonableness
of Gentile’s use of deadly force, as well as
on the issue of qualified immunity.20

loss because of the death, and (4) appointment of a
personal representative of the decedent).

employ deadly force. See Salim, 93 F.3d at 92
(concluding that because the inquiry is about
circumstances immediately prior to and at moment
officer made split-second decision to employ deadly
force, plaintiff’s faulting officer for various violations
of police procedure, including failure to carry radio
or call for back-up, or for failing to disengage when
other children entered fray, were irrelevant).

20

As a threshold matter, the Court notes that
Gentile’s and Ramos’s actions leading up to the
shooting, including their failure to notify the MTAPD
or NCPD that they were responding to the scene, are
irrelevant to determining the objective reasonableness
of Gentile’s conduct at the moment he decided to

22

feasible, some warning has been given.”);
Salim, 93 F.3d at 91–92 (reversing denial of
summary judgment because defendant
officer shot decedent “instinctively in
reaction to seeing [the decedent’s] hand on
the barrel of his gun while the two were
locked in a struggle” and officer “was being
pummelled [sic] by more than five people”
(internal quotation marks omitted)); Biggs,
2010 WL 4628360, at *4 (granting summary
judgment to defendants where plaintiff
stepped out of vehicle and began waving
thirteen-inch knife over his head “in a
threatening manner” seven to eight feet from
officers, and did not comply with orders to
drop knife even after officer warned plaintiff
that he would be shot if he did not comply).

*5 (finding genuine dispute as to whether
shooting officer’s failure to realize he was
shooting an officer was reasonable where
dispatcher
gave
information
that
plainclothes officer was on scene, and
plainclothes officer was wearing vest with
“police” written on it in reflective letters,
flagged down police car, and one of two
officers did not shoot because he realized
the man was an officer), with Pickens v.
Harris Cnty., Civil Action No. H-05-2978,
2006 WL 3175079, at *13 (S.D. Tex. Nov.
2, 2006) (concluding that shooting officer’s
failure to recognize that victim was fellow
officer was objectively reasonable because
victim made no effort to identify himself as
an officer when he joined on-duty deputies
in chasing suspect, while carrying gun, and
plaintiffs did not dispute that victim was
wearing plain t-shirt).

On the other hand, if certain evidence
that is most favorable to plaintiff is credited,
i.e., that (1) no officer commanded
Breitkopf to “drop your weapon” or gave
him any other warning; (2) no NCPD
officers struggled with Breitkopf (raising
questions about the credibility of Gentile’s
and Ramos’s testimony); (3) Breitkopf’s
assault rifle was pointing downward the
entire time; and (4) it was feasible for
Gentile to give a warning, then a reasonable
jury could find that Gentile did not have to
make the split-second judgment to shoot
and, therefore, his use of deadly force was
excessive. See Young, 404 F.3d at 14–15,
22–23 (holding that evidence was sufficient
to support verdict that officer used excessive
force, because “a jury could find that an
objectively reasonable officer would have
recognized [the man] as an officer, and thus
would have recognized that he was not a
threat and would not have shot him” based
on evidence that the man identified himself
as a police officer to others, he was holding
his gun with two hands as an officer would
and at a downward angle, and officers shot
“extraordinarily quickly” without giving
adequate warning); Pickens, 2006 WL
3175079, at *13 (reasonable jury could find

Completely independent of this issue
regarding the visibility of any police
identification, however, there are other
material facts in dispute that also preclude
summary judgment. In other words, even if
no police identification was visible, the
determination of the “reasonableness” of
Gentile’s decision depends on which version
of events one credits, as well as an
evaluation of the objective reasonableness of
Gentile’s perception of an imminent threat.
Specifically, if a jury credits Gentile’s
evidence that (1) Breitkopf refused an order
by a uniformed officer to drop his weapon;
(2) shrugged off Ramos’s attempt to stop
him and also struggled with two NCPD
officers; (3) raised his rifle towards the
officers and others at the scene; and (4) the
events occurred so rapidly that no warning
would have been feasible, then a reasonable
jury could conclude that Gentile’s use of
deadly force was reasonable. See, e.g.,
Garner, 471 U.S. at 11–12 (“[I]f the suspect
threatens the officer with a weapon . . .,
deadly physical force may be used if
necessary to prevent escape, and if, where
23

Accordingly, the Court denies summary
judgment to Gentile on the excessive force
and state law battery and wrongful death
claims.21

that officer used excessive force in friendlyfire incident where there were disputes as to
whether shooter warned victim to drop gun
before firing and whether victim was
running away from or turning towards
shooter when firing began); see also Hickey
v. City of New York, No. 01-CV-6506, 2004
WL 2724079, at *6 (S.D.N.Y. Nov. 29,
2004) (denying summary judgment where
plaintiffs “claim[ed] the shooting was
provoked by little more than the appearance
of Walter Hickey on his porch, with a cell
phone strapped to his waist,” while
defendants claimed that Hickey “emerged
from his home, threatening to shoot them,
and holding what appeared to be a gun in a
firing position”).

Similarly, the above-referenced factual
disputes also prevent the Court from
determining at the summary judgment stage
that Gentile merits qualified immunity. The
question of whether it was objectively
reasonable for Gentile to believe he was not
violating Breitkopf’s rights cannot be
determined until these factual disputes are
resolved. See Ngo, 2006 WL 1579873, at *7;
Cowan, 352 F.3d at 764 (denying summary
judgment on qualified immunity grounds
having already determined that there were
disputed facts regarding the reasonableness
of the officer’s conduct); Benson v. Yaeger,
No. 05-CV-784, 2009 WL 1584324, at *7
(W.D.N.Y. June 3, 2009) (“[T]he only issue
is whether the Officers’ conduct was
objectively reasonable—the very question
upon which this Court has found there are
genuine issues of material fact. Because the
factual disputes as to the objective
reasonableness of the Officers’ conduct
overlap in both the excessive force context
and the qualified immunity context,
summary judgment must be denied here.”).
In other words, even assuming arguendo

In short, although “police officers are
often forced to make split-second
judgments,” Graham, 490 U.S. at 397, the
Court cannot hold that Gentile merits
summary judgment simply because he
became aware of and involved in the
situation a second or two before he fired.
Although a rational jury could certainly
credit the evidence in the record that
supports Gentile’s version of the events,
which would warrant a finding that his splitsecond decision to shoot was objectively
reasonable and did not constitute excessive
force, that finding is contingent upon the
resolution of various factual disputes in the
record, and conflicting reasonable inferences
that could be drawn from such facts. In other
words, if the evidence is construed most
favorably to plaintiff, a reasonable factfinder
could conclude that Gentile’s decision to not
further assess the situation despite what he
saw, and not to issue a verbal warning—
which could have given Breitkopf time to
identify
himself—was
objectively
unreasonable.
Therefore,
the
Court
concludes that there are genuine disputes of
material fact that preclude summary
judgment as to whether Gentile used
excessive force by shooting Breitkopf.

21

“Unlike cases brought under § 1983, municipalities
may be liable for the common law torts, like false
arrest and malicious prosecution, committed by their
employees under the doctrine of respondeat
superior.” L.B. v. Town of Chester, 232 F. Supp. 2d
227, 239 (S.D.N.Y. 2002). “No municipal custom or
policy need be proven to establish the liability of the
[municipality] for violation of . . . state law, for
‘[m]unicipalities surrendered their common-law tort
immunity for the misfeasance of their officers and
employees long ago.’” Lore v. City of Syracuse, 670
F.3d 127, 168 (2d Cir. 2012) (quoting Tango v.
Tulevech, 61 N.Y.2d 34, 40 (1983)). Accordingly,
plaintiff’s state law battery and wrongful death
claims against the MTA for Gentile’s conduct survive
on a theory of respondeat superior.

24

present at police actions,” especially officers
from other jurisdictions.22 (FAC ¶¶ 61, 70.)
The MTA and the City move for summary
judgment on the Section 1983 claims against
them on the basis that plaintiff has failed to
establish the existence of any municipal
policy or custom that caused the alleged
violation of Breitkopf’s civil rights. For the
following reasons, the Court grants
summary judgment to the MTA and the City
on the Monell claims.

that Breitkopf’s police badge was not visible
at the time of the shooting, Gentile would
not be entitled to qualified immunity if
plaintiff were able to establish that (1) no
officer commanded Breitkopf to “drop your
weapon” or gave him any other warning; (2)
no NCPD officers struggled with Breitkopf;
(3) Breitkopf’s assault rifle was pointing
downward the entire time; and (4) it was
feasible for Gentile to give a warning to
Breitkopf before shooting. In other words, if
those facts are established, no officer of
reasonable competence could believe that
the use of deadly force was lawful. To grant
qualified immunity because of the rapidity
of the situation, because the facts in this case
are not precisely the same as in previous
excessive force cases, would “effectively
wrench of all meaning the Supreme Court’s
admonition that ‘officials can still be on
notice that their conduct violates established
law’” even in “novel” circumstances. Torres
v. City of Madera, 648 F.3d 1119, 1129 (9th
Cir. 2011) (citation omitted). In sum, there
are disputed factual issues as to the
circumstances
surrounding
Gentile’s
conduct that are relevant to the
determination of whether it was objectively
reasonable for Gentile to believe his use of
deadly force was lawful, and those factual
disputes preclude summary judgment on
qualified immunity grounds.
Accordingly, Gentile’s motion
summary judgment is denied.

a. Legal Standard
A municipal entity may be held liable
under Section 1983 where the plaintiff
demonstrates that the constitutional violation
complained of was caused by a municipal
“policy or custom.” Monell, 436 U.S. at 694
(emphasizing that the municipal policy must
be the “moving force of the constitutional
violation”). “The policy or custom need not
be memorialized in a specific rule or
regulation.” Kern v. City of Rochester, 93
F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco
22

In the FAC, plaintiff also asserts that the MTAPD
provided its officers “with no or inadequate training
concerning coordination with police departments and
officers from overlapping jurisdictions” and
“established no agreement or joint operating
procedures or protocols with the [NCPD] concerning
the joint activities or coordination . . . when MTA
officers and Nassau County police officers jointly
report to incidents in Nassau County.” (FAC ¶¶ 78–
79.) The MTA moves for summary judgment on this
issue, arguing, inter alia, that plaintiff “offers no
particulars as to what such training would consist of,
or what the terms of an agreement covering ‘joint
activities’ would provide,” and that “the NCPD has
no written or oral agreements” with any of the
federal, state, and local level agencies that perform
police duties within Nassau County. (MTA & Ramos
Motion, at 22.) Plaintiff did not address this issue in
her opposition. Accordingly, the Court deems these
allegations abandoned and grants the MTA’s motion
with respect to these allegations. See, e.g., Maher v.
Alliance Mortg. Banking Corp., 650 F. Supp. 2d 249,
267–68 (E.D.N.Y. 2009).

for

2. Municipal Liability
Because the excessive force claim
against Gentile survives, the Court next
considers whether the MTA and the City can
be held liable under Section 1983. Plaintiff
alleges that the MTAPD officers did not
receive “adequate training in recognizing
and responding to situations potentially
justifying the use of deadly force,” or “in
recognizing plainclothes police officers
25

actionable where, “in light of the duties
assigned to specific officers or employees
the need for more or different training is so
obvious, and the inadequacy so likely to
result in the violation of constitutional
rights, that the policymakers of the
[municipality] can reasonably be said to
have been deliberately indifferent to the
need”). The plaintiff must show the
“policymaker’s inaction was the result of
‘conscious choice’ and not ‘mere
negligence.’” Cash v. Cnty. of Erie, 654
F.3d 324, 334 (2d Cir. 2011) (quoting
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 128 (2d Cir. 2004)); Ortiz v.
Goord, 276 F. App’x 97, 98 (2d Cir. 2008)
(“Defendants may be held liable under
§ 1983 if they . . . exhibited deliberate
indifference to a known injury, a known
risk, or a specific duty, and their failure to
perform the duty or act to ameliorate the risk
or injury was a proximate cause of
plaintiff’s deprivation of rights under the
Constitution.”
(internal
citation
and
quotation marks omitted)).

v. N.Y.C. Police Dep’t, 971 F.2d 864, 870
(2d Cir. 1992)). Instead, constitutional
violations by government officials that are
“persistent and widespread” can be “so
permanent and well settled as to constitute a
custom or usage with the force of law, and
thereby generate municipal liability.”
Sorlucco, 971 F.2d at 870–71 (citing
Monell, 436 U.S. at 691) (internal quotation
marks omitted). In addition, a policy,
custom, or practice of the entity may be
inferred where “‘the municipality so failed
to train its employees as to display a
deliberate indifference to the constitutional
rights of those within its jurisdiction.’”
Patterson, 375 F.3d at 226 (quoting Kern,
93 F.3d at 44). A municipal entity, however,
may be held liable only where the entity
itself commits a wrong; “a municipality
cannot be held liable under § 1983 on a
respondeat superior theory.” Monell, 436
U.S. at 691.
“The failure to train or supervise
[municipal] employees may constitute an
official policy or custom if the failure
amounts to ‘deliberate indifference’ to the
rights of those with whom the [municipal]
employees interact.” Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007)
(quoting City of Canton v. Harris, 489 U.S.
378, 388 (1989)). Deliberate indifference
exists where the plaintiff establishes that (1)
“a policymaker knows ‘to a moral certainty’
that [municipal] employees will confront a
particular situation”; (2) “the situation either
presents the employee with ‘a difficult
choice of the sort that training or supervision
will make less difficult,’ or ‘there is a
history of employees mishandling the
situation’”; and (3) “the wrong choice by the
[municipal] employee will frequently cause
the deprivation of a citizen’s constitutional
rights.” Id. at 195–96 (quoting Walker v.
City of New York, 974 F.2d 293, 297–98 (2d
Cir. 1992)); see also Canton, 489 U.S. at
390 (stating that municipal training is

Recently, the Supreme Court reiterated
that “[a] pattern of similar constitutional
violations by untrained employees is
‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of
failure to train.” Connick v. Thompson, 131
S. Ct. 1350, 1360 (2011). (quoting Bd. Of
Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 409 (1997)). Thus, it is not
enough to show an injury could have been
avoided if an officer had certain or
additional training. Canton, 489 U.S. at
390–91. This is because without actual or
constructive “notice that a course of training
is deficient in a particular respect,
decisionmakers can hardly be said to have
deliberately chosen a training program that
will cause violations of constitutional
rights.” Connick, 131 S. Ct. at 1360. At the
same time, however, the Court reaffirmed
the viability, “in a narrow range of
26

circumstances,” of the “single-incident”
theory of liability envisioned in Canton. See
id. at 1360–61; Canton, 489 U.S. at 390
n.10. Under that theory, a municipality can
be found to be deliberately indifferent based
on a single constitutional violation where
“the unconstitutional consequences of
failing to train [are] so patently obvious that
a city should be liable under [Section] 1983
without proof of a pre-existing pattern of
violations.”23 Connick, 131 S. Ct. at 1361.
The violation of constitutional rights must
be a “highly predictable consequence” of the
failure to train. Id. (internal quotation marks
omitted). “Thus, deliberate indifference may
be inferred where the need for more or better
supervision to protect against constitutional
violations was obvious, but the policymaker
failed to make meaningful efforts to address
the risk of harm to plaintiffs.” Cash, 654
F.3d at 334 (alterations and internal citations
and quotation marks omitted).

liability does not apply, and there is no
evidence that the MTA never trained its
officers on how to handle plainclothes
officer confrontations; (2) the training at the
NYPD Academy addressed the scale of
force and use of deadly force, both in a
classroom setting and during tactical,
scenario-based training; (3) MTA officers
adequately were taught how to resolve
confrontations with plainclothes officers;
(4) the MTA’s policies are adequate and
were reinforced to Gentile during yearly
training; and (5) plaintiff cannot show that
any deficient training caused Breitkopf’s
death. Plaintiff argues that she has proffered
adequate evidence showing the MTA was
deliberately indifferent, because (1) MTA
supervisors knew officers could encounter
plainclothes
officers
from
other
jurisdictions, and they acknowledged that
such confrontations present officers with
difficult decisions; (2) the Task Force
Report demonstrates the high probability
that a misidentification of an officer could
result in serious injury; (3) before
Breitkopf’s death, not all officers received
in-service plainclothes training, and the
training at the MTA’s firearms range
encouraged them to shoot armed,
unidentified individuals, rather than follow
the procedures outlined in the MTAPD
Manual; and (4) Gentile acted pursuant to
the training he received.

b. Application to the MTA
The MTA argues that summary
judgment on the Monell claim is appropriate
because (1) the single incident theory of
23

In Canton, the Supreme Court hypothesized that a
municipality’s decision not to train police officers on
the constitutional limitations on the use of deadly
force “could properly be characterized as ‘deliberate
indifference’ to constitutional rights” because the
need for such training is “so obvious.” 489 U.S. at
390 n.10. In Connick, the Court rejected municipal
liability, reasoning that the risk that a prosecutor
would commit a serious Brady violation was not
“obvious,” because “[i]n light of this regime of legal
training and professional responsibility, recurring
constitutional violations are not the ‘obvious
consequence’ of failing to provide prosecutors with
formal in-house training about how to obey the law.”
131 S. Ct. at 1363. The Court also emphasized that
“[t]he Canton hypothetical assumes that the armed
police officers have no knowledge at all of the
constitutional limits on the use of deadly force,”
leaving the officers with an “utter lack of ability to
cope with constitutional situations.” Id.

As an initial matter, the record is bereft
of evidence that, before March 2011, the
MTA knew of a pattern or even one incident
involving
the
misidentification
of
plainclothes officers and the use of deadly
force by MTAPD employees, the RAND
and Task Force Reports, or notice of any
purported deficiencies with the NYPD
Academy’s and the MTA’s training of its
officers with respect to the use of deadly
force and police-on-police confrontations.
Further, it is uncontroverted that, before
March 2011, the MTA trained its officers,
27

area”). Since Connick, some courts have
concluded that a plaintiff cannot rely on the
single-incident theory where she challenges
the adequacy and not the lack of the
existence of training. See, e.g., Chamberlain
v. City of White Plains, 986 F. Supp. 2d 363,
391–93 (S.D.N.Y. Dec. 10, 2013)
(collecting
cases
denying
summary
judgment based on lack of any training, and
dismissing claims challenging adequacy of
training and denying motion to dismiss
where plaintiff alleged no training); Wereb
v. Maui Cnty., 830 F. Supp. 2d 1026, 1031–
34 (D. Haw. 2011) (analyzing Connick,
concluding that the “single incident theory
does not allow inquiry into subtleties of
training,” and denying summary judgment to
defendant because there was evidence that
county failed to train employees on how to
monitor detainees and how to monitor for
deprivation of serious medical needs);
O’Brien v. Barrows, 556 F. App’x 2, 5 (2d
Cir. 2014) [hereinafter O’Brien II] (“[T]he
Court has suggested that failing to provide
an armed police officer with any training
about the constitutional limitations on the
use of deadly force could constitute
deliberate indifference.” (emphasis in
original)). Nothing in Connick or Second
Circuit precedent, however, precludes a
single-incident theory if the plaintiff can
show that the training provided is
tantamount to a lack of training because the
municipal employees have an “utter lack of
an ability to cope with constitutional
situations,” Connick, 131 S. Ct. at 1363, and
“the need for more or different training is so
obvious and the inadequacy so likely to
result in the violation of constitutional
rights,” Canton, 489 U.S. at 390. Accord
Harvey v. Campbell Cnty., 453 F. App’x
557, 567 (6th Cir. 2011) (‘“For liability to
attach in the instance of a single violation,
the record must show a complete failure to
train the police force, training that is so
reckless or grossly negligent that future

including Gentile, on the basic constitutional
limitations on the use of deadly force and
how to confront plainclothes officers. (See,
e.g., Gentile Dep. at 162–65 (discussing
NYPD Academy), 166–67 (recognizing that
“Police, don’t move” command regards
scenarios involving off-duty and uniformed
officers and stating that he received training
about such confrontations at the Academy
and in yearly certifications from the
MTAPD), 168–70 (explaining that in
MTA’s shooting training, “[the target] can
flip to the front side or backside,” and if “it
flips to the front side, it will be a man with a
gun,” and “if it flips to the man displaying a
gun, you do shoot that target,” unlike when
it flips to the rear side and the man has a
shield), 180–81 (explaining that firearms
training does not focus on necessity of
deadly force, unlike other training), 180–88
(discussing
plainclothes
confrontation
training).) Thus, because nothing suggests
that the MTA condoned or ignored repeated
constitutional violations, plaintiff must rely
on a single-incident theory of liability.
As noted supra, a “‘single incident is
generally insufficient to demonstrate
liability under [a failure to train theory].’”
Perez v. N.Y.C. Dep’t of Corr., No. 10-CV2697 RRM RML, 2013 WL 500448
(E.D.N.Y. Jan. 17, 2013) (quoting Rubio v.
Cnty. of Suffolk, No. 01-CV-1806 (TCP),
2007 WL 2993833, at *8 (E.D.N.Y. Oct. 9,
2007), aff’d, 328 F. App’x 36 (2d Cir.
2009)); see White-Ruiz v. City of New York,
No. 93CIV.7233(DLC)(MHD), 1996 WL
603983, at *10 (S.D.N.Y. Oct. 22, 1996)
(denying summary judgment on failure to
train or supervise claim because, inter alia,
“[t]he [Mollen] Commission report and the
testimony of former Commissioner Kelly
provide sufficient evidence of the
pervasiveness of police misconduct and
retaliation against ‘rats’ and the sure
knowledge of the Police Department
regarding the need for better training in this
28

Even construing the record most favorably
to plaintiff, no rational jury could find that
the training provided was tantamount to a
lack of training because the municipal
employees have an “utter lack of an ability
to cope with constitutional situations,”
Connick, 131 S. Ct. at 1363, nor could a
rational jury find that “the need for more or
different training is so obvious and the
inadequacy so likely to result in the
violation of constitutional rights,” Canton,
489 U.S. at 390. The Second Circuit recently
reached the same conclusion in rejecting a
failure to train claim involving similar
circumstances. See O’Brien v. Barrows, No.
1:10-cv-173-jgm, 2013 WL 486655, at *10
(D. Vt. Feb. 7, 2013) [hereinafter O’Brien I]
(“The Plaintiff attempts to create a material
dispute by alleging the officers merely read
the policy at the in-service trainings, but do
not receive classroom training or testing on
it. In determining whether the Plaintiff has
shown facts that arise to a patently obvious
failure to train, this Court is unwilling to
comb the SPD’s training program with such
a fine brush. The Supreme Court has
specifically cautioned against engaging ‘in
an endless exercise of second-guessing
municipal employee-training programs.’”
(quoting Canton, 489 U.S. at 392)), aff’d,
556 F. App’x at 5 (reasoning that plaintiff’s
description “does not fully account for the
training that the SPD provides to its
officers,” plaintiff identified no “authority
for his argument that the SPD’s method or
quantity of training provided to its officers is
insufficient,” and “there was no indication
that the SPD’s training was inadequate given
its nearly unblemished record with respect to
allegations of excessive force”).24

police misconduct is almost inevitable or
would properly be characterized as
substantially certain to result.’” (quoting
Hays v. Jefferson Cnty., 668 F.2d 869, 874
(6th Cir. 1982))). This Court applies that
standard. As set forth below, even
construing the evidence in the record most
favorably to plaintiff, no rational jury could
conclude that the standard for municipal
liability, under a failure to train theory or
any other theory, has been met.
MTAPD officers initially train at the
NYPD Academy, and they receive ongoing
training from the MTAPD on, among other
topics, the constitutional limitations on the
use of deadly force, plainclothes officer
confrontations, and the corresponding
written guidelines. Although plaintiff takes
issue with the amount or format of the
training provided to Gentile, that cannot
establish deliberate indifference as a matter
of law. E.g., Connick, 131 S. Ct. at 1363–64
(“But showing merely that additional
training would have been helpful in making
difficult decisions does not establish
municipal liability. ‘[P]rov[ing] that an
injury or accident could have been avoided
if an [employee] had had better or more
training, sufficient to equip him to avoid the
particular injury-causing conduct’ will not
suffice.” (quoting Canton, 489 U.S. at 391)
(brackets in original)); id. at 1363
(“[F]ailure-to-train liability is concerned
with the substance of the training, not the
particular instructional format. The statute
does not provide plaintiffs or courts carte
blanche to micromanage local governments
throughout the United States.”). Plaintiff
also does not identify any constitutional
deficiencies in the written guidelines issued
to Gentile by the NYPD or MTA, suggest
how the procedure could or must be
improved to better equip officers to handle
plainclothes officer confrontations, or
demonstrate how any such improvement
could have helped avoid Breitkopf’s death.

24

Plaintiff’s reliance on Young v. Providence, 404
F.3d 4 (1st Cir. 2005), is unpersuasive. In Young, two
Providence police officers, responding to a call, shot
and killed an off-duty Providence police officer
attempting to respond to the same incident under the

29

Plaintiff also argues that Gentile was
unequipped to handle a plainclothes officer
confrontation
properly
because
the
inadequate scenario-based training did not

ingrain in him the instinct to issue a verbal
command to Breitkopf before using physical
and deadly force. (MTA & Ramos Opp., at
23.) Plaintiff’s attempt to use the drill
during the firearms requalification to raise a
genuine issue of fact on the adequacy of the
training is entirely misplaced. As a threshold
matter, although plaintiff argues this drill
during the annual requalification is deficient
because it does not allow for a verbal
warning, no such conclusion could be drawn
from the record. Specifically, plaintiff has
pointed to no evidence that the gun is
displayed during the flip drill in a manner
that would make a warning feasible. In other
words, if the target is pointing a gun at the
officer when it flips, no warning would be
feasible or necessary. Thus, plaintiff’s
speculation about this drill does not raise a
genuine issue of material fact that precludes
summary judgment.

city’s “always armed/always on-duty” policy that
required him to act despite being off-duty and out of
uniform. Id. at 9. The First Circuit first determined
that a reasonable jury could find the shooting of the
decedent unreasonable because the shooting officer
“should have recognized [the decedent] as an offduty officer (due to [the decedent’s] demeanor and
verbal commands) or not shot [the decedent] so
rapidly without making sure of his identity.” Id. at
27. The court then reasoned that a failure to train
theory was viable because a jury could find that the
officer’s actions stemmed from the lack of training
on
on-duty/off-duty
interactions,
avoiding
misidentification of off-duty officers, and other issues
related to the always armed/always on-duty policy.
Id. at 27. The court found that there were genuine
disputes of material fact about the existence of any
training as to these issues, and there was “some
evidence from which a jury could find that it was
common knowledge within the [police department]
that misidentifications of off-duty officers responding
to an incident often occurred in Providence.” Id. at
28. The First Circuit also reasoned that, although
there was no evidence of a prior friendly fire
shooting, “[a] jury could conclude that the severity of
the consequences of a friendly fire shooting forced
the department to take notice of the high risk despite
the rarity of such an incident” and provide
particularized
training
on
on-duty/off-duty
interactions and misidentifications to lessen this risk,
because departmental policy literally required
officers to respond to incidents while off-duty and to
always carry a firearm. Id. at 28–29.

In addition, it is uncontroverted that
Gentile and Ramos were trained at the
NYPD Academy and the in-service with the
MTAPD on the constitutional limits on the
use of deadly physical force, including that
“[w]here feasible, and consistent with
personal safety, a Member should identify
him/herself as a police officer and give some
warning prior to discharging a firearm in a
deadly physical force situation.” (MTAPD
Manual, at 0169.) There is no testimony
from any MTAPD member, or anyone else,
that officers were instructed to disregard the
guidelines in the MTAPD Manual, or that
they believed the firearms requalification
drill procedures trumped the guidelines in
the MTAPD Manual. In fact, Gentile and
Ramos testified that they received training
on the need to use a warning where feasible,
and knew it was the proper protocol. (See
Gentile Dep. at 162–65, 176–77, 180–88;
Ramos Dep. 142–43, 150, 152–53, 157–61.)
In particular, Gentile acknowledged that he
knew from his training that, where feasible,
the challenging officer must give the

Here, in contrast, it is uncontroverted that
Gentile and other MTAPD officers were trained with
respect to the use of deadly force and how to handle
plainclothes officer confrontations, and there was no
pattern of misidentifications. In addition, the
misidentification did not involve off-duty officers or
a policy similar to Providence’s—the existence of
which unquestionably affected the First Circuit’s
finding of increased risk. Therefore, Young is clearly
distinguishable from the record in the instant case,
and does not provide support for plaintiff’s claim that
the MTA was deliberately indifferent to the need to
train properly its officers as to plainclothes officer
confrontations and the use of deadly force, or that its
training was constitutionally deficient.

30

unidentified armed person the opportunity to
identify herself and comply in order to help
deescalate the situation in case the person is
a plainclothes or off-duty police officer.
Despite receiving such training, however,
Gentile concluded it was not feasible on
March 12, 2011. (See Gentile Dep. at 185
(“Q. If you could read the second thing
[from the MTA Patrol Guide]. A. ‘Two,
identify yourself in a loud clear voice stating
‘police, don’t move.’[] Q. Did you ever
identify yourself in a loud voice stating
‘police, don’t move’? A. I have before; not
in this incident. There was no time . . . .”).25
Thus, even assuming arguendo that the
firearms requalification drill and its
“shoot/don’t shoot” scenario were imperfect,
that imperfection would not preclude
summary judgment. See Connick, 131 S. Ct.
at 1363–64. Plaintiff proffers no evidence
from which a reasonable jury could
conclude that Gentile relied on the firearms
drill and disregarded his other training when
he shot Breitkopf. Finally, contrary to the
Second Circuit’s instruction, plaintiff has
presented no evidence tending to rule out
those causes of the excessive force that
would not support municipal liability, such
as the negligent administration of a valid
program or Gentile’s negligent or intentional
disregard of his training. See Amnesty Am.,
361 F.3d at 129–30 (citing Canton, 489 U.S.
at 390–91) (“The elements of an identified
training deficiency and a close causal
relationship, which together require the
plaintiffs to prove that the deprivation
occurred as the result of a municipal policy
rather than as a result of isolated misconduct
by a single actor, ensure that a failure to
train theory does not collapse into
respondeat superior liability.”).

Plaintiff also has failed to provide a
single case where training comparable to the
training provided to the MTAPD has been
found to be constitutionally deficient. Other
courts confronting a lack of evidence to
support a failure to train claim involving
friendly-fire incidents have reached a similar
conclusion. See, e.g., Pickens, 2006 WL
3175079, at *14–18 (granting summary
judgment on failure to train claim where
state law required off-duty officers to be
“always on duty” but allowed rather than
required them to carry a gun, law
enforcement witnesses recognized risk of
misidentification of off-duty or plainclothes
officers who are armed and intervene in
police actions, there was no “particularized”
training module or unit devoted specifically
to teaching uniformed on-duty officers to
identify plainclothes officers in the field,
officer had sixty hours of use-of-force
training and some training in off-duty
encounters and recognized risk of
misidentification, and plaintiffs had not
raised fact issue as to whether lack of
“particularized” training would have
avoided shooting, and there was no pattern
of misidentification); Ngo, 2006 WL
1579873, at *9–11 (granting summary
judgment on claim of deliberate indifference
in failing to train officers in avoiding
misidentification of plainclothes officers in
the field because plaintiff had not identified
“any specific training” that would have
prevented shooter’s mistaken perception that
victim was the suspect-at-large, city
provided some training on plainclothes
officer identification, and there was no
evidence that city had ignored pattern of
misidentification).
In sum, even construing the evidence
most favorably to plaintiff, no rational jury
could find that Gentile had “the utter lack of
an ability to cope with” the situation before
him, Connick, 131 S. Ct. at 1363, and that
this lack of ability caused Gentile to

25

Gentile also testified that he did not fire
immediately upon turning and seeing Breitkopf with
a weapon, but rather only when he “saw the rifle start
coming up.” (Gentile Dep. at 111:24–25.)

31

misidentify Breitkopf and use excessive
force. Accordingly, the Court concludes the
MTA is entitled to summary judgment on
the Section 1983 claim.26 Cf. Canton, 489
U.S. at 391 (“And plainly, adequately
trained officers occasionally make mistakes;
the fact that they do says little about the
training program or the legal basis for
holding the city liable.”).27

Plaintiff, meanwhile, now claims that
the City should be held liable because it had
a continuing common law and contractual
duty to the MTA to apprise the MTA of the
purported deficiencies in its training
uncovered by RAND. Plaintiff also claims
that Gentile’s actions were not a superseding
intervening cause, because they were a
natural and foreseeable consequence of the
allegedly inadequate training he received at
the Academy. The City counters that this
reformulation is inappropriate at this
juncture and that plaintiff’s claim sounds in
tort and is procedurally barred. As set forth
below, the Court agrees with the City.

c. Application to the City
The City argues that summary judgment
on the failure to train claim is appropriate
because it cannot be held liable for the
actions of MTA employees, the training the
Academy provided to Gentile was adequate,
and the City was not on notice of any
purported deficiencies in the program when
Gentile attended. As a threshold matter,
other than addressing the issue regarding the
adequacy, plaintiff did not address the City’s
other arguments in her opposition or at oral
argument. Although the failure to address
such arguments could be construed as
abandonment of her § 1983 claim against
the City, see Maher, 650 F. Supp. 2d at 267–
68, the Court will address these arguments.

i.

Municipal Liability for a NonEmployee’s Actions

Under Monell, an employee of the
defendant municipality generally must have
committed the underlying constitutional
violation. See, e.g., Henry-Lee, 746 F. Supp.
2d at 567 (“[A] constitutional violation by a
municipal employee is a necessary
prerequisite to municipal liability under
Monell.”); cf. Bd. of Cnty. Comm’rs, 520
U.S. at 405 (“[R]igorous standards of
culpability and causation must be applied to
ensure that the municipality is not held
liable solely for the actions of its employee.”
(citing Canton, 489 U.S. at 391–92)
(emphasis added)). In exceptional cases, a
municipality may be held liable for the
actions of a former officer or employee, see
Sassak v. City of Park Ridge, 431 F. Supp.
2d 810, 815–17 (N.D. Ill. 2006), or an
employee who also works for another
municipality, see Askew v. Bloemker, 548
F.2d 673, 677–78 (7th Cir. 1976)
(considering circumstances and concluding
that city police officers assigned on full-time
basis to federal agency were not acting
under color of state law and could not be
sued under § 1983), if the defendant
“municipality’s custom or policy [is] the
moving force behind the [employee’s] harm-

26

Plaintiff does not elaborate on her claim that the
MTA is liable because Gentile lacked training on the
differences between New York City and Nassau
County and did not know the NCPD has a BSO unit.
(See MTA & Ramos Opp., at 23.) Her conclusory
assertion does not raise a genuine issue of material
fact as to whether the lack of such training
proximately caused Breitkopf’s death.

27

For the same reasons, the Court grants summary
judgment to the MTA to the extent the state law
claims against it are for negligent training or
supervision. See Henry-Lee v. City of New York, 746
F. Supp. 2d 546, 566 (S.D.N.Y. 2010) (“To prevail
on a [state law] claim for negligent hiring, training,
supervision, or retention, a plaintiff must prove that a
municipality’s failure to properly train, hire, retain, or
supervise ‘its police officers in a relevant respect
evidences a deliberate indifference to the rights of its
inhabitants.’” (quoting Jackson v. City of New York,
596 N.Y.S.2d 457, 458 (N.Y. App. Div. 1993))).

32

causing conduct,” Sassak, 431 F. Supp. 2d at
815; see also Gibson v. City of Chicago, 910
F.2d 1510, 1512–13, 1519–20 (7th Cir.
1990) (concluding that municipality was not
entitled to summary judgment on Monell
claim even though suspended officer placed
on medical leave and declared unfit for duty
did not shoot and kill neighbor under color
of state law, because municipal liability
depends on alleged municipal policies, and
municipality had not attempted to recover
officer’s service revolver). A municipality
that only trained and does not employ the
constitutional wrongdoer, however, cannot
be held liable for failure to train. See Sassak,
431 F. Supp. 2d at 815–17; cf. Canton, 489
U.S. at 389 (“Only where a municipality’s
failure to train its employees in a relevant
respect evidences a ‘deliberate indifference’
to the rights of its inhabitants can such a
shortcoming be properly thought of as a city
‘policy or custom’ that is actionable under
§ 1983.” (emphasis added)); Simms v. City
of New York, 480 F. App’x 627, 629 (2d Cir.
2012) (“A municipality may be held liable
under § 1983 for its failure to train or
adequately supervise its employees . . . .”
(emphasis added)). The Court’s research
uncovered no cases holding that a
municipality must continue to monitor or
address a trainee’s conduct in order to avoid
Section 1983 liability, even though that
trainee no longer works or never worked for
the municipality and/or is under the control
and supervision of another municipality.28

That responsibility lies with the employer.
For example, in Sassak, the plaintiffs
alleged that Lake Zurich was liable under
Section 1983 for its failure to train,
supervise, and monitor police officers who
committed wrongs, and that, instead of
dismissing the officers, Lake Zurich hid
information about their known unlawful and
unconstitutional conduct and provided
positive
references
to
prospective
employers. 431 F. Supp. 2d at 814–15. Lake
Zurich argued it could not be held liable for
failure to train because the defendant officer
was employed by the City of Park Ridge
when plaintiffs were injured, absolving Lake
Zurich of any obligation to train, control, or
discipline him. Id. at 815. The court agreed,
Section 1983 if the MTA contracted with it to train
the MTAPD recruits, absent evidence that the MTA
was a “joint participant in the challenged activity” or
ran the program itself. See id. Similarly, here, there is
no evidence that the MTA and the City co-developed
the curriculum at the Academy. The Court has found
no case law to support the proposition that the City
can be held liable for Gentile’s alleged constitutional
violation under a failure to train theory simply
because the NYPD runs the Academy.
The City could, however, be liable to the MTA
for contribution or indemnification, and to plaintiff,
based on simple negligence. See Sager v. City of
Woodland Park, 543 F. Supp. 282, 297–98 & n.20
(D. Colo. 1982) (denying summary judgment to
third-party City of Colorado Springs where other
municipality alleged that Colorado Springs, through
its Training Academy, undertook obligation to train
an officer and did so negligently, on grounds that (1)
as a matter of law, the risks created by Colorado
Springs’ alleged failure to train properly its officers
on shotgun-arrest technique are unreasonable, and it
thus owes a duty to train properly that foreseeably
extends to those wrongfully injured as proximate
result of such improper training; (2) if officer killed
decedent as a result of improper shotgun technique,
act could have been foreseeable and does not break
chain of causation; and (3) parties had not presented
conclusive facts as to causation, and third-party
plaintiff’s own “grossly negligent” or “deliberately
indifferent” acts might be superseding causes).

28

Relatedly, “[p]rivate individuals and entities are
not normally liable for violations of rights secured by
the United States Constitution. In order to maintain a
claim based on alleged constitutional violations, a
plaintiff must show that the actions complained of are
‘fairly attributable’ to the government”—that they are
“taken under color of state law.” Archer v. Econ.
Opportunity Comm’n of Nassau Cnty., Inc., 30 F.
Supp. 2d 600, 604–05 (E.D.N.Y. 1998) (quoting
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
Thus, plaintiff could not sue a private entity under

33

against the MTA), there is no evidence that
the training was constitutionally defective or
that any such defects caused Gentile’s
actions. Lastly, failure to train and failure to
inform—plaintiff’s theory of liability in her
opposition brief—are distinct. The latter is
based on negligence principles, and plaintiff
has not demonstrated that the City’s failure
to inform the MTA of the RAND Report
was grossly negligent, precluding suit under
Section 1983. See Felix-Torres v. Graham,
687 F. Supp. 2d 38, 65 (N.D.N.Y. 2009)
(“[W]hile ‘ordinary negligence by itself
could not establish a cause of action under
Section 1983, repeated acts of negligence
can be evidence of indifference’ amounting
to gross negligence.” (quoting Tylena M. v.
Children’s Servs., 390 F. Supp. 2d 296, 302
(S.D.N.Y. 2005))).

reasoning that “any link between Lake
Zurich’s failure to train and [the officer’s]
arrest of plaintiffs was severed by [the
officer’s] subsequent employment by Park
Ridge.” Id. at 816. It explained that the two
are distinct municipalities, and “it cannot be
said that the policies and customs of the
former motivated plaintiff when he was
employed by the latter.” Id. According to the
court, “Lake Zurich’s failure to discipline
and control its police officers could provide
no incentives for [the defendant officer] to
engage in illegal activity as a Park Ridge
police officer,” and “Lake Zurich could not
ratify or condone [the officer’s] arrest of
plaintiffs.” Id. The court also saw no direct
causal “link between the failed policy and
the ultimate harm,” because “even if Lake
Zurich adequately trained or disciplined its
police officers, that training would not
prevent an officer from committing acts of
abuse when subsequently employed by
another jurisdiction,” unlike in Gibson,
where, “had the defendant instituted an
adequate weapon collection policy, and
efficaciously applied it to the officer placed
on medical leave, then the officer could not
have used his service revolver to shoot his
neighbor.” Id. at 816–17.

Accordingly, the Court grants the City’s
motion for summary judgment on the
Section 1983 claim against it on this ground.
ii.

Negligence Claim

In her opposition, plaintiff claims the
City negligently breached its “duty to
apprise the MTA of the deficiencies in its
recruit training which came to light as a
result of the RAND Corp. review.” (NYC
Opp., at 10.) The City argues that this is
improper because the allegations in the FAC
did not give it adequate notice that plaintiff
was pursuing a negligence claim based on
failure to inform, and plaintiff never filed a
notice of claim pursuant to GML §§ 50-e
and 50-i. (NYC Reply, at 8–10.) At oral
argument, plaintiff’s counsel argued (1) the
City had notice because the FAC mentions
“pendent state law tort claims” (FAC ¶ 5);
and (2) no notice of claim was necessary
because the claim sounds in contract (id.
¶ 21). In her sur-reply, plaintiff argues that
the City is liable to her for breaching its
contractual obligation to properly train
MTAPD candidates, because it (1) launched

This Court reaches the same conclusion
under the facts of this case. Here, Gentile
never worked for the NYPD, and he
graduated from the Academy in 2006. Even
assuming arguendo that there were
deficiencies in the Academy’s instruction,
no rational jury could find a direct causal
link between any such shortcomings and
Breitkopf’s death, because (1) the City had
no control over Gentile and no responsibility
to continue training him; (2) the MTAPD
provides in-service training independent of
the NYPD—training plaintiff claims taught
Gentile to shoot first and ask questions later
if he encounters an armed, plainclothes
individual; and (3) as discussed supra (in
connection with the Section 1983 claim
34

a force or instrument of harm, and (2)
“entirely displaced the MTA’s obligation to
properly train its officer candidates” through
the contractual agreement. (NYC Sur-Reply,
Docket No. 172, at 1–2.) Plaintiff also
argues the City was on notice, because it
admitted it had an agreement to train
MTAPD candidates and pleaded, as an
affirmative defense, that plaintiff may have
failed to file a notice of claim. (Id. at 2.)
Finally, plaintiff reiterates her belief that no
notice of claim was required, because, “for
purposes of the notice requirements of
General Municipal Law § 50-e, the cause of
action will only be found to sound in tort
rather than in contract when the claim is
entirely independent of the contractual
relations between the parties.” (Id. at 4.)
According to plaintiff, because “the duty
owed by the City of New York arises by
virtue of contract, the claim is not subject to
the notice requirements.” (Id.)

arguendo that the City was on notice, the
Court concludes that summary judgment is
warranted because plaintiff failed to file a
notice of claim pursuant to GML §§ 50-e
and 50-i.
Plaintiff does not dispute that a notice of
claim is necessary for a personal injury
claim against the City or that her failure to
file a timely notice of claim would justify
the dismissal of any negligence action
against the City (or make any amendment at
this juncture futile). See, e.g., Crippen v.
Town of Hempstead, No. 07-CV-3478
(JFB)(ARL), 2009 WL 803117, at *15–18
(E.D.N.Y. Mar. 25, 2009) (addressing notice
of claim requirement). Instead, plaintiff
argues that no notice of claim was required
because her claim sounds in contract.
A notice of claim under GML § 50-e is
unnecessary when alleging fraud and breach
of contract against a municipality, and so the
need to file a notice of claim before suing a
public corporation depends on whether the
essence of the claim sounds in contract or
tort. Guinyard v. City of New York, 800 F.
Supp. 1083, 1090 (E.D.N.Y. 1992);
Everston v. State of N.Y. Mortg. Agency, No.
89 Civ. 7474 (RJW), 1992 WL 6190, at *8
(S.D.N.Y. Jan. 3, 1992) (citing Hoydal v.
City of New York, 545 N.Y.S.2d 823, 824
(N.Y. App. Div. 1989)). However, although
a party outside a contract may “sue for tort
damages arising out of negligently
performed or omitted contractual duties,”
Palka v. Servicemaster Mgmt. Servs. Corp.,
83 N.Y.2d 579, 586 (1994), no authority
holds that such a claim “sounds in contract,”
or that no notice of claim is required for a
tort claim related to a contract or a duty
arising from a contract, or a tort claim
arising from the same allegedly wrongful

As a threshold matter, plaintiff attempts
to reformulate her theory of negligence
liability again in the sur-reply. In her
opposition, plaintiff asserts a “failure to
inform” theory. In the sur-reply, she shifts
again to a failure to train theory. It is
impermissible to vary the claim from filing
to filing in order to avoid summary
judgment.29 Regardless, even assuming
29

“[A]t a minimum,” a complaint must provide
“notice of the nature of the claim against [the
defendant], including which of its actions gave rise to
the claims upon which the complaint is based,” so as
to permit the defendant to “commence discovery”
and prepare a defense. E & L Consulting, Ltd. v.
Doman Indus. Ltd., 472 F.3d 23, 32 (2d Cir. 2006).
The FAC alleges failure to train, not that the City
failed to inform the MTA of deficiencies in the
Academy’s training. (See FAC ¶¶ 73–77.) Therefore,
plaintiff’s mention of “pendent state law claims” and
an agreement with the MTA could not have put the
City on notice that its alleged failure to inform “gave
rise to the claims upon which the complaint is
based.” E & L Consulting, 472 F.3d at 32.

35

conduct underlying a contract claim.30

because that “could render the contracting
parties liable in tort to an indefinite number
of potential beneficiaries.” Id. at 138–39
(internal quotation marks omitted). It held
that “a party who enters into a contract to
render services may be said to have assumed
a duty of care—and thus be potentially
liable in tort—to third persons” where (1)
“the contracting party, in failing to exercise
reasonable care in the performance of his
duties, launches a force or instrument of
harm”; (2) “the plaintiff detrimentally relies
on the continued performance of the
contracting party’s duties”; and (3) “the
contracting party has entirely displaced the
other party’s duty to maintain the premises
safely.” Id. at 140 (internal quotation marks,
brackets, and citations omitted) (emphasis
added); see also Palka, 83 N.Y.2d at 589
(“This record supports the conclusion that
Servicemaster undertook a duty and
breached the duty to inspect and manage the
repair of wall-mounted fans. Nurse Palka
was injured as a result of Servicemaster’s
negligent performance or nonperformance of
that tort duty arising out of its extensive,
exclusive
maintenance
contract.”).
Plaintiff’s claim, which is for personal
injury damages and not damages
contemplated between the contracting
parties, undoubtedly falls under the first
Espinal category. Cf. Electrocraft Ark., Inc.
v. Super Electric Motors, Ltd., No.
4:09cv00318 SWW, 2009 WL 5181854, at
*6 (E.D. Ark. Dec. 23, 2009) (explaining,
under Arkansas law, that the right sued upon
is contractual if based on breach of contract,
and tortious if based on breach of a noncontractual duty; that damages prayed for
are a factor in determining whether an action
sounds in contract or tort; and that, “[i]n tort
cases, the purpose of the law to compensate
the plaintiff for the injury inflicted even
though it may have been unexpected, but in
contract cases the special damages must
have been in contemplation of the parties

Palka and Espinal v. Melville Snow
Contractors, 98 N.Y.2d 136 (2002), support
this conclusion. In Espinal, the Court of
Appeals considered whether a duty of care
ran from the defendant to the plaintiff, who
slipped and fell in a parking lot owned by
her employer, based on the defendant’s
snow removal contract with the employer.
98 N.Y.2d at 138. The Court of Appeals did
not hold that the defendant was liable to
plaintiff in contract or that the claim
“sounded in contract.” Instead, the court
explained that “a contractual obligation,
standing alone, will generally not give rise
to tort liability in favor of a third party,”
30

The cases addressing whether a claim based on
breach of contract sounds in contract or tort do not
involve third-party beneficiaries. Instead, they focus
on whether the claim involves the “breach of a duty
extraneous to, or distinct from, the contract between
the parties.” Hoydal, 545 N.Y.S.2d at 824–25; see
Avazpour Networking Servs., Inc. v. Falconstor
Software, Inc., 937 F. Supp. 2d 355, 361 (E.D.N.Y.
2013) (“[E]ven in the absence of personal injury,
New York courts recognize a claim in tort under
circumstances where a party to a contract can
properly allege the breach of a duty owed to the
plaintiff, that exists separate and apart from the
contract.”); Everston, 1992 WL 6190, at *8 (holding
that claim sounded in contract because allegedly
breached duties were same duties arising from
contract plaintiff claimed existed between him and
defendant); N. Shore Bottling Co. v. Schmidt & Sons,
22 N.Y.2d 171, 179 (1968) (“[A] contracting party
may be charged with a separate tort liability arising
from a breach of a duty distinct from, or in addition
to, the breach of contract.”). Plaintiff does not
establish that she and Breitkopf were parties to the
contract between the City and MTA or that, as a
matter of law, they can sue for breach of contract to
“obtain the benefit of their bargain,” Avazpour, 937
F. Supp. 2d at 362; see Hoydal, 545 N.Y.S.2d at 824–
25 (“Since this cause of action does not allege a
breach of duty extraneous to, or distinct from, the
contract between the parties, the plaintiffs’ theory of
recovery is necessarily limited to a suit to recover
damages for breach of contract.”), rather than sue in
tort as third-party beneficiaries.

36

when the agreement was made”).

police and firefighters could not recover in
common law negligence for line of duty
injuries resulting from risks associated with
the particular dangers inherent in that type
of employment. Gammons v. City of New
York, 972 N.Y.S.2d 559, 562 (N.Y. App.
Div. 2013) (quoting Wadler v. City of New
York, 14 N.Y.3d 192, 194 (2010)).

Accordingly, because plaintiff’s claim
sounds in tort and she failed to file a notice
of claim, the Court grants summary
judgment to the City on the negligence
claim on this ground.31
B. GML § 205-e Claims

The New York State Legislature has on
several occasions “sought to ameliorate the
harsh effects of the firefighter’s rule.”
Giuffrida, 100 N.Y.2d at 77. First, the rule
now is applicable only in actions against a
“police officer’s or firefighter’s employer or
co-employee.” N.Y. Gen. Oblig. Law § 11106(1). Second, GML § 205-a (as to
firefighters) and GML § 205-e (as to police
officers) establish a cause of action where an
officer is injured by any person’s failure “to
comply with the requirements of any of the
statutes, ordinances, rules, orders and
requirements of the federal, state, county,
village, town or city governments or of any
and all their departments, divisions and
bureaus.” Gammons, 972 N.Y.S.2d at 564;
see N.Y. Gen. Mun. Law § 205-e(1).
Although the language of the statute “is
expansive, the [New York] Court of Appeals
has explained that ‘the statute cannot
reasonably be applied literally in accordance
with its broad language.’” 972 N.Y.S.2d at
564 (quoting Galapo v. City of New York, 95
N.Y.2d 568, 574 (2000)). Consequently, as a
prerequisite to recovery under § 205-e, “a
police officer must demonstrate injury
resulting from negligent noncompliance
with a requirement found in a welldeveloped body of law and regulation that
imposes clear duties.” Galapo, 95 N.Y.2d at
574 (internal quotation marks omitted); see
also Williams v. City of New York, 2 N.Y.3d
352, 363 (2004).

Plaintiff’s state law claims against the
individual defendants under GML § 205-e
are premised on alleged violations of the
New York Penal Law. For the following
reasons, the Court concludes that none of the
§ 205-e claims survive summary judgment,
with the exception of the claim against
Cafarella based upon his alleged violation of
New York Penal Law § 190.25(3).
1. Legal Standard
At common law, the “firefighter’s rule”
employed in New York barred firefighters
and police officers “from recovering for
injuries caused by ‘negligence in the very
situations that create the occasion for their
services.’” Madonna v. Am. Airlines, Inc.,
82 F.3d 59, 61 (2d Cir. 1996) (quoting
Santangelo v. State, 71 N.Y.2d 393, 397
(1988)); see also Giuffrida v. Citibank
Corp., 100 N.Y.2d 72, 76–79 (2003). Thus,
31

In any event, even assuming no notice of claim was
required, for the reasons already discussed in
connection with the § 1983 claims, plaintiff has failed
to create a genuine issue of material fact as to
whether any alleged negligence in failing to advise
the MTA of the RAND Report caused Gentile’s
actions. To the contrary, as noted supra, Gentile
received adequate training and acknowledged that
training in his deposition. Thus, any evidence of
causation is completely lacking, and summary
judgment is warranted on this independent basis as
well. In short, there is insufficient evidence for a
negligence claim to survive summary judgment
against the City regardless of the plaintiff’s theory
(including negligent training or negligent supervision
or negligent failure to inform).

To establish a claim under GML § 205e, the plaintiff must “(1) identify the statute
or ordinance with which the defendant failed
37

conduct was criminal and not justified.” Id.
at 366–67.32

to comply, (2) describe the manner in which
the [firefighter or police officer] was
injured, and (3) set forth those facts from
which it may be inferred that the defendant’s
negligence directly or indirectly caused the
harm.” Gammons, 972 N.Y.S.2d at 564; see
also Madonna, 82 F.3d at 62. In Giuffrida,
the New York Court of Appeals discussed
the causation element, establishing that to
make out a claim under GML §§ 205-a and
205-e, “a plaintiff is not required to show
the same degree of proximate cause as is
required in a common-law negligence
action.” 100 N.Y.2d at 81. “Rather, the
substantial case law that has developed on
the subject holds that a plaintiff need only
establish a practical or reasonable
connection between the statutory or
regulatory violation and the claimed injury.”
Id. (internal quotation marks and citation
omitted); see also Zanghi v. Niagara
Frontier Transp. Comm’n, 85 N.Y.2d 423,
441 (1995).

2. Penal Law § 195.05: Obstructing
Governmental Administration
Plaintiff alleges that Ramos, Gentile, and
Cafarella are liable based on their violation
of N.Y. Penal Law § 195.05. Section 195.05
provides, in relevant part, that “[a] person is
guilty
of
obstructing
governmental
administration when he intentionally . . .
prevents or attempts to prevent a public
servant from performing an official function,
by means of intimidation, physical force or
interference, or by means of any
independently unlawful act.”
To be guilty, the defendant must intend
to prevent the public servant from lawfully
engaging in a specific official function.
Dicker v. Campus, 981 F. Supp. 851, 858
n.3 (S.D.N.Y. 1997); see People v. Beam,
866 N.Y.S.2d 564, 567 (N.Y. Crim. Ct.
2008) (“Activities such as refusing to obey
orders, physically resisting arrest, interfering
with the arrest of another, or assaulting a

In this case, plaintiff premises her claims
on violations of the New York Penal Law. A
Section 205-e “claim may be predicated on a
violation of those Penal Law sections that
prohibit specific acts.” Williams, 2 N.Y.3d at
365. The claim may not “be premised solely
on a violation of the justification defenses
found in the Penal Law or the Criminal
Procedure Law.” Id. Further, where no
criminal charges were brought against the
defendant, “a rebuttable presumption exists
that the Penal Law has not been violated.”
Id. at 366. Thus, “a defendant who has not
been charged with a crime is entitled to
summary judgment on a section 205-e claim
predicated on the Penal Law where a
reasonable view of the evidence supports the
conclusion either that no prohibited conduct
took place, or that a justification defense
exists.” Id. To defeat the motion, the
“plaintiff must come forward with
compelling evidence demonstrating a
material question of fact as to whether the

32

In Williams, the Court of Appeals explained that
the plaintiff’s burden was “further complicated by the
fact that” the defendant officers were acting in the
line of duty when the decedent was killed, and they
“contend[ed] that they employed the force necessary
to defend themselves against what they reasonably
believed to be the use or imminent use of deadly
physical force.” 2 N.Y.3d at 366. The court
acknowledged that Penal Law § 35.30 “requires a
trier of fact to ‘second-guess an officer’s split-second
weighing of choices,’” but it reasoned that the fact
that Section 205-e liability is based on violation of a
law that imposes “clear duties” “cautions against
predicating a section 205-e claim on alleged Penal
Law violations that implicate the justification
defense.” Id. (emphasis in original). Thus, although
the court held that a conviction is not necessary for
§ 205-e liability, “because the provisions that
plaintiff claims were violated require proof beyond a
reasonable doubt and even then, otherwise criminal
conduct is excused if justified, [the plaintiff’s] burden
is substantial in the absence of a conviction.” Id.

38

considerations
in
Beam
and
is
distinguishable from the conduct in Davan.
Further, no reasonable jury could conclude
that defendants intended to prevent
Breitkopf from performing his duties. That
the effect of their actions obstructed
Breitkopf does not mean they intended to
obstruct his performance of his duties.

police officer are all typical acts that are
properly
charged
as
obstructing
governmental
administration.
The
commonality in these offenses is an
intentional insertion of one’s self or one’s
intentions into steps taken by police officers
to fulfill their duties.” (internal citations
omitted)); People v. Ferreira, 807 N.Y.S.2d
832, 834 (N.Y. Crim. Ct. 2005) (“Although
criminal responsibility may attach to
minimal interference set in motion to
frustrate police activity, it does so only
where a person intentionally impedes or
defeats a governmental function by means of
physical force or interference or by means of
some independently unlawful act.” (internal
quotation marks and citations omitted)). In
addition, “purely verbal interference may
not satisfy the ‘physical component under
Penal Law § 195.05.’” In re Davan L., 91
N.Y.2d 88, 91 (1997) (citing People v. Case,
42 N.Y.2d 98, 102 (1977)). Instead, the
interference must be physical in nature at
least in part. Id. Interrelated conduct—
“actions coupled with words” or conduct
causing some “physical reaction and
dispersal”—is actionable. Id. at 91–92; see
Wood v. Town of E. Hampton, Civil Action
No. 08-CV-4197, 2010 WL 3924847, at
*11–12 (E.D.N.Y. Sept. 30, 2010); In re
Davan, 91 N.Y.2d at 91–92 (finding
probable cause to arrest teenager for
obstruction, where he was specifically
warned by officer about narcotics operation
but still rode bicycle towards known
criminal activity to warn potential targets of
police presence, causing “a physical reaction
and dispersal” of the targets).

Accordingly, even construing the
evidence most favorably to plaintiff, because
she has failed to come forward with any
evidence demonstrating a material question
of fact as to whether the conduct was
criminal under Section 195.05 and not
justified, Williams, 2 N.Y.3d at 367, the
Court grants summary judgment to Gentile,
Ramos, and Cafarella on the N.Y. Penal
Law § 195.05-based GML § 205-e claims.
3. Penal Law § 190.25: Criminal
Impersonation in the Second Degree
Plaintiff alleges that Cafarella also is
liable based on his violation of N.Y. Penal
Law § 190.25(3), which prohibits criminal
impersonation in the second degree:
A person is guilty of criminal
impersonation in the second degree
when he . . . (a) [p]retends to be a
public servant, or wears or displays
without authority any uniform,
badge, insignia or facsimile thereof
by which such public servant is
lawfully distinguished, or falsely
expresses by his words or actions
that he is a public servant or is acting
with approval or authority of a public
agency or department; and (b) so acts
with intent to induce another to
submit to such pretended official
authority, to solicit funds or to
otherwise cause another to act in
reliance upon that pretense.

There is no evidence from which a
reasonable jury could find that, under the
circumstances, Ramos, Gentile, and
Cafarella intended to obstruct governmental
administration.
The
uncontroverted
testimony establishes that defendants wanted
to help the NCPD address the situation with
Anthony, which does not implicate the

N.Y. Penal Law § 190.25(3). Cafarella
argues that the claim has no merit because
39

the force at that time, was proscribed under
Penal Law § 190.25(3), and officer had
reasonable basis to conclude that plaintiff
attempted to use his status to gain favorable
treatment at a sobriety checkpoint); People
v. Jackson, No. 2011-2 S CR, 975 N.Y.S.2d
368, at *1–2 (N.Y. App. Div. Dec. 24, 2012)
(concluding, inter alia, that evidence at trial
was factually and legally sufficient to
establish intent element because defendant
admitted he made statement in question with
intent to induce officer to leave him alone);
People v. Diamond, 353 N.Y.S.2d 688, 690
(N.Y. Crim. Ct. 1974) (denying motion to
dismiss impersonation charge because there
was evidence that defendant “sought to
obtain the benefit of avoiding arrest and its
possible consequences by impersonating a
transit authority conductor and displaying a
conductor’s badge”); cf. DePrima v. Vill. of
Catskill, 105 F. Supp. 2d 75, 81–82
(E.D.N.Y. 2000) (denying defendants’
summary judgment motion on false arrest,
false
imprisonment,
and
malicious
prosecution claims because there was a
genuine issue of material fact regarding
whether probable cause existed to arrest the
plaintiff for impersonating an officer where,
at the time of his arrest, plaintiff’s badge
“clearly indicated” he was the past chief of
police, which was true, and he did not
attempt to use the badge to obtain favorable
treatment, nor attempt to act as an officer).
In addition, a public servant employed by
one public agency or department can
commit the crime of criminal impersonation
by falsely implying that she is acting with
the approval or authority with another such
agency or department. See People v.
Martinez, 602 N.Y.S.2d 217, 218 (N.Y.
App. Div. 1993) (upholding conviction of
criminal impersonation in first degree
because evidence established that defendant
New York City Corrections Officer robbed
man after stopping him by displaying a
police officer’s shield). Notwithstanding the

the statute requires him to assume the
identity of a real person and have “intent to
derive a personal benefit” or “making
someone submit to pretended authority.”
(Cafarella Motion, at 12, 14.) He also claims
his actions did not cause Breitkopf’s death.
First, by its plain language, subsection
(3) does not require the defendant to assume
the identity of a real person, unlike
subsection
(1),
which
requires
impersonation of “another . . . with intent to
obtain a benefit or to injure or defraud
another.” N.Y. Penal Law § 190.25(1); see,
e.g., People v. Sadiq, 654 N.Y.S.2d 35, 36
(N.Y. App. Div. 1997). Because subsection
(3) requires “intent to induce another to
submit to such pretended authority . . . or to
otherwise cause another to act in reliance
upon that pretense,” actual submission to the
pretended authority, reliance upon that
pretense, and intent to derive a personal
benefit are unnecessary. Contra People v.
Karp, 365 N.Y.S.2d 414, 416 (N.Y. Crim.
Ct. 1975) (holding that actual submission to
pretended authority is necessary). Thus, to
the extent that Cafarella argues that he must
be impersonating a real person or must
intend to derive a personal benefit in order
to be liable, the Court disagrees.
Second, the Court recognizes that no
court has considered a similar case—where
a retired police officer interjects herself into
an active police operation with the desire to
assist. Courts generally have dealt with
incidents involving false representations or
desires to obtain a benefit. See, e.g.,
Barcomb
v.
Sabo,
No.
8:07-cv877(GLS/DRH), 2011 WL 1770795, at *12
(N.D.N.Y. May 9, 2011) (holding that
officer was entitled to qualified immunity
from false arrest and malicious prosecution
claims because officers of reasonable
competence could disagree as to whether
plaintiff’s statement that he had been a cop
for six years, in light of his suspension from
40

weapon. (Cafarella Dep. at 108–10.) In fact,
Ramos recalled the statement not in the form
of an announcement, but rather in the form
of a command: “Drop your weapon, drop
your weapon.” (Ramos Dep. at 77, 81–82.)
In short, the Court concludes that plaintiff
has presented compelling evidence that
creates a genuine issue of fact as to whether
Cafarella, by his words and actions, induced
others—specifically, Ramos, Gentile, and
Breitkopf—to believe he was a police
officer, or acted with police authority and
approval, in order to induce individuals at
the scene to submit to that pretended
authority, in violation of Section 190.25(3).

absence of case authority addressing the
claim here, there is no reason that, under the
appropriate factual circumstances, such a
claim could not be brought against a retired
officer who pretends to be acting as a police
officer and induces another to act upon such
pretended authority. As set forth below, the
Court concludes that plaintiff has submitted
sufficient evidence to create a genuine issue
of fact that precludes summary judgment on
this GML § 205-e claim based upon an
alleged violation of Penal Law § 190.25(e).
Plaintiff has submitted several pieces of
evidence to support her claim that Cafarella
created the false impression at the scene that
he was acting with the approval or authority
of the NCPD, and caused others (including
Ramos and Gentile) to rely upon that
pretense. First, plaintiff points to evidence
that Cafarella initially intervened when
Lewis was confronting Anthony, as Anthony
held the knife and Cafarella made certain
commands to him. (Lewis Dep. at 29–31.)
Second, plaintiff points to evidence that
Cafarella, after calling 911, stayed at the
scene and continued to give directions to
others. For example, plaintiff points to
evidence that Cafarella gave some
instruction to police officers about checking
another individual who exited the side door
of the DiGeronimo house. (Cafarella Dep. at
49, 65–66.) In addition, plaintiff points to
the testimony of Theresa Kelly that
Cafarella directed her to “get the f*** out of
here” on three separate occasions and kicked
her car door. (Deposition of Theresa Kelly
(“Kelly Dep.”) at 13, Cafarella Opp. Ex. E.)
Kelly further testified that Cafarella was
“ordering everyone around,” “causing a lot
of confusion,” and that “everybody seemed
to be listening to him.” (Kelly Dep. at 13–
15.) She testified that she was under the
impression he was a detective, in
plainclothes. (Id. at 23.) Plaintiff also points
to evidence that Cafarella called out “gun”
when he saw Breitkopf carrying an assault

The Court finds Cafarella’s arguments
for summary judgment unpersuasive. In
particular, Cafarella argues this claim cannot
proceed because it is uncontroverted that he
told NCPD officers he was “retired from the
force.” (Pl. Cafarella Counterstatement ¶ 2.)
Similarly, both Gentile and Ramos testified
that Cafarella was not displaying a shield
and that they knew he was a retired police
officer. (Gentile Dep. at 55, 64, 72; Ramos
Dep. at 49, 58, 71.) Thus, Cafarella argues
that any statements by him cannot, as a
matter of law, implicate Penal Law
§ 190.25(3). However, that argument fails to
recognize that, when Cafarella yelled “gun”
or “drop your weapon” or words to that
effect, neither Gentile nor Ramos knew
precisely who had uttered that statement.
Gentile testified that he heard an
announcement of a “gun” or “weapon” and
at the same time and saw NCPD with a look
of alarm. (Gentile Tr. at 98–104.) Ramos
testified that, given the circumstances, he
presumed it was an officer. (See Ramos Tr.
at 77 (“As I was looking at the front of the
house for no particular reason, I overheard
what I assumed to be a Nassau County
Police Officer challenge somebody saying
‘drop your weapon, drop your weapon.’”).)
In short, if the evidence is construed most
favorably to plaintiff, a rational jury could
41

Law § 265.01(1)–(2). Plaintiff relies on
Anthony’s possession of a “metal knuckle
knife” under subsection (1), and “a
dangerous knife” under subsection (2).

conclude that, at that moment, Cafarella was
trying to induce Breitkopf and/or other
police officers to act on his pretended
official or approved authority, and induced
Ramos and Cafarella to act on that
pretended authority. Moreover, the evidence
also creates a material dispute of fact as to
whether there is a practical or reasonable
connection between the alleged violation of
Section
195.25(3)
(which
includes
Cafarella’s alleged statement regarding the
“gun” or “weapon”) and the shooting of
Breitkopf. Although Cafarella points to the
fact that Gentile did not fire immediately
upon hearing the statement, the causation
issue must be resolved by the jury under the
particular facts of this case.

With respect to subsection (1), as
explained supra, no rational jury could
conclude that Anthony was carrying the
Interceptor on March 12, 2011, because
there is no evidence to support that
contention.
Therefore,
although
an
Interceptor could qualify as a “metal
knuckle knife” under subsection (1), that
knife had absolutely no connection to
Anthony’s or the police’s actions on that
date. In any event, even assuming arguendo
Anthony possessed the Interceptor on his
person on March 12, any claim against the
DiGeronimos under subsection (1) must fail
for the same reasons a claim under
subsection (2) must fail (as discussed
infra)—namely, there is no evidence that the
DiGeronimos possessed any of those
weapons on March 12 (or had the intent
required by the statute), or that any of
Anthony’s weapons had any practical or
reasonable connection to Breitkopf’s death.

Accordingly, the Court denies summary
judgment to Cafarella on the N.Y. Penal
Law § 195.25(3)-based GML § 205-e claim.
4. Penal Law Claims against the
DiGeronimos
Plaintiff alleges that the DiGeronimos
are liable under GML § 205-e based on their
violation of N.Y. Penal Law §§ 265.01
(criminal possession of a weapon in the
fourth degree), 105.00 (conspiracy in the
sixth degree), and 20.00 (aiding and
abetting). Section 265.01 provides, in
relevant part, that a person is guilty of
criminal possession of a weapon in the
fourth degree when (1) she “possesses any
firearm, electronic dart gun, electronic stun
gun, gravity knife, switchblade knife, pilum
ballistic knife, metal knuckle knife, cane
sword, billy, blackjack, bludgeon, plastic
knuckles, metal knuckles, chuka stick, sand
bag, sandclub, wrist-brace type slingshot or
slungshot, shirken or ‘Kung Fu star’”; or (2)
she possesses any dagger, dangerous knife,
dirk, razor, stiletto, imitation pistol, or any
other dangerous or deadly instrument or
weapon with intent to use the same
unlawfully against another.” N.Y. Penal

With respect to subsection (2), a knife
may be considered a “dangerous knife,”
within the meaning of that subsection, when
the circumstances of its possession,
including the behavior of its possessor,
demonstrate that the possessor herself
considered it a weapon, even if the knife
might not otherwise be defined as a
“dangerous knife” by reason of its inherent
characteristics. In re Michael Grudge M.,
915 N.Y.S.2d 286, 287–88 (N.Y. App. Div.
2011) (citing In re Matter of Jamie D., 59
N.Y.2d 589, 591–93 (1983); In re Sean R.,
824 N.Y.S.2d 302, 304 (N.Y. App. Div.
2006))
(concluding
that
appellant’s
aggressive behavior, specific threat of
physical injury he allegedly made against
complainant, and fact that he appeared to be
about to reach for weapon, demonstrated
42

that appellant considered knife on him to be
a weapon and thus a “dangerous knife”); see
People v. Laramore, 764 N.Y.S.2d 299, 299
(N.Y. App. Div. 2003) (explaining that
“‘intent to use unlawfully against another’ . .
. may be inferred from the act itself, or from
the defendant’s conduct or the surrounding
circumstances.’” (internal quotation marks
omitted)). New York Penal Law § 265.15(4)
provides that possession of a “dangerous
knife” is presumptive evidence of intent to
use the knife unlawfully against another.
Accord Sean R., 824 N.Y.S.2d at 304. Thus,
for example, where “the instrument in
question [is] not a weapon per se, but a
kitchen knife, the presumption of unlawful
intent by virtue of the mere possession of the
instrument [such as in Penal Law §
265.15(4)] does not apply.” Laramore, 764
N.Y.S.2d at 299. “[T]he key inquiry is the
manner in which the kitchen knife is used.”
Levy v. City of New York, 935 F. Supp. 2d
575, 586 (E.D.N.Y. 2013).

sixth degree when, with intent that conduct
constituting a crime be performed, he agrees
with one or more persons to engage in or
cause the performance of such conduct.”
There is no evidence of an agreement
between the DiGeronimos and Anthony.
Moreover, a finding of a “dangerous” knife
depends on the “circumstances of its
possession.” Michael Grudge, 915 N.Y.S.2d
at 287. Even construed most favorably to
plaintiff, there is no evidence that Anthony
or the DiGeronimos considered the knife
Anthony possessed inherently a weapon or a
“dangerous knife,” that the DiGeronimos
gave Anthony the knife for that reason or to
facilitate the commission of a crime, or that
the DiGeronimos did not stop Anthony from
leaving home despite knowing that he
potentially could use the knife in an
unlawful manner. Therefore, summary
judgment to the DiGeronimos is warranted
because plaintiff fails to raise a genuine
issue of material fact as to the possession of
a “dangerous knife” or the “intent” elements
in the Penal Law statutes.

Even construing the facts most favorably
to plaintiff, no rational jury could find the
DiGeronimos liable for violating Penal Law
§ 265.01(2). Although plaintiff claims the
DiGeronimos directly violated the statute,
there is no evidence that they possessed a
“dangerous knife” on March 12. Anthony’s
actions precipitated the police activity. For
substantially
similar
reasons,
the
DiGeronimos could not be criminally liable
for Anthony’s conduct pursuant to (1) Penal
Law § 20.00, which requires that the
accomplice act “with the mental culpability
required for the commission” of the crime;33
or (2) Penal Law § 105.00, which provides
that a “person is guilty of conspiracy in the

Finally, even assuming arguendo that
the DiGeronimos violated the Penal Law,
plaintiff fails to demonstrate a genuine issue
of fact as to any “practical or reasonable
connection” between any violation and
Breitkopf’s death. Plaintiff argues that there
is a reasonable connection because, without
these acts, Breitkopf would not have
responded to the DiGeronimos’ residence.
(DiGeronimo Opp., at 12–13.) Plaintiff’s
theory eviscerates any notion of a limit to
liability based on causation. Despite the
temporal proximity, Anthony was killed
before Breitkopf arrived, numerous NCPD
officers were present and addressing the
situation, and the DiGeronimos had no
control over any officer’s response or the
police procedures utilized. Plaintiff cites to
no case holding that a civilian (including a
landlord) may be held liable under GML
§ 205-e for harm to police officers based on

33

Under New York law, the culpable mental states
are “intentionally,” “knowingly,” “recklessly,” or
with “criminal negligence,” N.Y. Penal Law § 15.05;
and with “depraved indifference to human life,” see
generally People v. Feingold, 7 N.Y.3d 288 (2006).

43

circumstances wholly outside the civilians’
control and of which they had no notice.
Instead, under New York law, liability in
analogous situations must be premised on
notice and foreseeability to the third party.
See generally Ishmail v. ATM Three, LLC,
909 N.Y.S.2d 540, 542 (N.Y. App. Div.
2010) (explaining that landowner has no
duty reasonably to protect those using her
premises from harm not caused by a third
party’s foreseeable criminal conduct on the
premises); Gover v. Mastic Beach Prop.
Owners Ass’n, 869 N.Y.S.2d 593, 594 (N.Y.
App. Div. 2008) (“Liability can be imposed
upon a landowner or a lessee who creates a
defective condition on the property, or had
actual or constructive notice of the allegedly
defective condition.”). Here, no rational
jury could conclude that the events that
transpired with respect to the shooting of
Breitkopf, after Anthony’s death, were
foreseeable to the DiGeronimos or had any
practical or reasonable connection to the
possession of weapons by Anthony.

that responding officers could be killed in a
“friendly fire” exchange. For the following
reasons, only the negligence claim against
Cafarella survives summary judgment.34
1. Legal Standard
“Negligence is conduct that falls beneath
the standard of care which would be
exercised by a reasonably prudent person in
similar circumstances at the time of the
conduct at issue.” Harper v. United States,
949 F. Supp. 130, 132 (E.D.N.Y. 1996).
Under New York law, a plaintiff must
establish the following elements to prove
negligence: (1) the defendant owed a duty of
care to the plaintiff; (2) the defendant
breached that duty; (3) the defendant’s
breach was a proximate cause of the
plaintiff’s injuries; and (4) the plaintiff was
damaged. E.g., Van Nostrand v. Froehlich,
844 N.Y.S.2d 293, 293 (N.Y. App. Div.
2007); Luina v. Katharine Gibbs Sch. N.Y.,
Inc., 830 N.Y.S.2d 263, 263 (N.Y. App.
Div. 2007); Talbot v. N.Y. Inst. of Tech., 639
N.Y.S.2d 135, 135 (N.Y. App. Div. 1996).

Accordingly, the Court grants summary
judgment to the DiGeronimos on the N.Y.
Penal Law §§ 265.01-, 105.00-, and 20.00based GML § 205-e claim.

New York General Obligations Law
Section 11-106 permits officers injured in
the line of duty to recover damages from the
person or entity whose negligence caused
the injury. Section 11-106(1) provides:

C. Negligence Claims against Cafarella
and the DiGeronimos

In addition to any other right of
action or recovery otherwise
available under law, whenever any
police officer or firefighter suffers
any injury, disease or death while in
the lawful discharge of his official
duties and that injury, disease or
death is proximately caused by the
neglect,
willful
omission,
or
intentional, willful or culpable

Plaintiff also brings common law
negligence claims against Cafarella and the
DiGeronimos. She contends that Cafarella is
liable because, through his involvement at
the scene, he assumed a duty of reasonable
care that extended to Breitkopf and breached
that duty when he challenged Breitkopf’s
presence, proximately causing Breitkopf’s
death. Plaintiff claims the DiGeronimos are
liable for negligently entrusting Anthony
with a dangerous instrumentality and for
breaching their duty to protect the NCPD
officers on their property from the
foreseeable harm from Anthony and the risk

34

The negligence determination is also determinative
of plaintiff’s wrongful death claims. See Eberts, 861
N.Y.S.2d at 732.

44

plaintiff, for “without a duty running
directly to the injured person there can be no
liability in damages, however careless the
conduct or foreseeable the harm.” Lauer v.
City of New York, 95 N.Y.2d 95, 100 (2000).
Courts traditionally “‘fix the duty point by
balancing factors, including the reasonable
expectations of parties and society generally,
the proliferation of claims, the likelihood of
unlimited
or
insurer-like
liability,
disproportionate risk and reparation
allocation, and public policies affecting the
expansion or limitation of new channels of
liability.’” 532 Madison Ave. Gourmet
Foods v. Finlandia Ctr., 96 N.Y.2d 280, 288
(2001) (quoting Hamilton v. Beretta U.S.A.
Corp., 96 N.Y.2d 222, 232 (2001)).

conduct of any person or entity,
other than that police officer’s or
firefighter’s employer or coemployee, the police officer or
firefighter suffering that injury or
disease . . . may seek recovery and
damages from the person or entity
whose neglect, willful omission, or
intentional, willful or culpable
conduct resulted in that injury,
disease or death.
2. Application as to Cafarella
Cafarella argues that he owed no duty of
care to Breitkopf and did not cause or
contribute to Breitkopf’s death. (Cafarella
Motion, at 5–10.) Cafarella contends that his
utterance of “gun” after he saw an
unidentified armed man on the premises did
not create a duty or special relationship
between him and Breitkopf, and that
Gentile’s reaction to Cafarella’s utterance
was not to immediately shoot but only to
turn to his left. (Id. at 6–7.) Plaintiff
counters that Cafarella assumed a duty of
care towards those at the scene because he
interjected himself into the management of
the crime scene and created the pretense that
he was an officer with authority. (Cafarella
Opp., at 10–12.) She claims Cafarella either
knew or should have known of the danger of
misidentifying a plainclothes police officer
and the danger of unauthorized civilian
interference at a crime scene, and that there
is a genuine issue of material fact as to
proximate cause because mere seconds
elapsed between Cafarella’s utterance and
Gentile’s firing his weapon. (Id. at 12–13.)

The scope of an actor’s duty to a
plaintiff depends on the relationship of the
parties, whether the plaintiff was within the
zone of foreseeable harm, and whether the
harm (the accident) was within the class of
reasonably foreseeable hazards that the duty
exists to prevent. Di Ponzio v. Riordan, 89
N.Y.2d 578, 583 (1997) (citations omitted);
see also Palsgraf v. Long Island R.R. Co.,
248 N.Y. 339, 344–45 (1928) (Cardozo, J.).
Although foreseeability generally is for the
factfinder to resolve, courts may dismiss
cases where the risks are unforeseeable as a
matter of law. Sanchez v. State of New York,
99 N.Y.2d 247, 252 (2002). “The nature of
the inquiry depends, of course, on the
particular facts and circumstances in which
the duty question arises.” Di Ponzio, 89
N.Y.2d at 583. Further, to be considered
foreseeable, the precise manner in which the
harm was inflicted need not be perfectly
predicted. In re September 11 Litig., 280 F.
Supp. 2d 279, 295 (S.D.N.Y. 2003).
According to the New York Court of
Appeals:

a. Duty
In New York, the existence of a duty of
care to a plaintiff is a “legal, policy-laden
declaration reserved for” judges. Palka, 83
N.Y.2d at 585. The injured party must show
the defendant owed not merely a general
duty to society but a specific duty to the

[W]here an individual breaches a
legal duty and thereby causes an
occurrence that is within the class of
45

could result if plaintiff can prove that
Cafarella negligently inserted himself into a
police investigation and negligently yelled
“gun.” Although Breitkopf’s and the
MTAPD officers’ actions influenced the
subsequent course of events, Cafarella
reasonably should have foreseen that a
confrontation or shooting that causes death
could arise if he negligently interfered with
the police, and/or negligently misidentified a
plainclothes officer as having a gun.
Therefore, the Court concludes that
Cafarella owed a duty of care to Breitkopf
and that Breitkopf’s death arose from risks
within the scope of that duty.

foreseeable hazards that the duty
exists to prevent, the individual may
be held liable, even though the harm
may have been brought about in an
unexpected way. On the other hand,
no liability will result when the
occurrence is not one that is
normally associated with such
hazards. Significantly, the kind and
number of hazards encompassed
within a particular duty depend on
the nature of the duty.
Di Ponzio, 89 N.Y.2d at 584.
These considerations warrant the
conclusion,
under
the
particular
circumstances of this case, that Cafarella
owed a duty of care to the civilians and law
enforcement at the scene, at least
commensurate with that required of civilians
(and potentially commensurate to the duty
reasonably required of police officers in
similar circumstances); that Breitkopf was
within the zone of foreseeable harm; and
that the harm was within the reasonably
foreseeable risks. Cafarella consciously
chose to remain involved at the scene.
Consequently, he undertook a duty to avoid
taking action that unreasonably could
endanger the safety of those at scene or
unreasonably
interfere
with
law
enforcement. NCPD officers—including
Breitkopf—reasonably expected that they
would be able to discharge their duties
without improper interference, Cafarella
best could govern his conduct, and
recognizing a duty on Cafarella’s part would
not substantially expand or create “new
channels of liability.” See Moch Co. v.
Rensselaer Water Co., 247 N.Y. 160, 167
(1982) (“It is ancient learning that one who
assumes to act, even though gratuitously,
may thereby become subject to the duty of
acting carefully, if he acts at all.”). Further,
an armed police altercation and shooting is
within the class of foreseeable hazards that

b. Breach and Causation
As set forth below, genuine disputes of
material fact preclude summary judgment on
the breach and causation elements as to the
negligence claim against Cafarella.
Specifically, a rational jury could
conclude that Cafarella should have known
that Breitkopf had passed by NCPD officers
without incident, and, thus, that Breitkopf
was a plainclothes officer.35 On the other
hand, if the evidence is construed in
Cafarella’s favor, a rational jury also could
conclude that Cafarella could not have
known about Breitkopf beforehand, and
35

Obviously, if plaintiff is able to persuade the jury
that it should reasonably infer from the record that
Breitkopf was wearing his police identification in a
manner that would have been visible to Cafarella,
then plaintiff’s argument on this claim would be even
more compelling. As noted supra, defendants point
out that no eyewitness saw any police identification
around Breitkopf’s neck prior to the shooting (and
that witnesses only observed it after Breitkopf
received medical attention and his shirt was cut
open). Even if no police identification was visible,
however, a rational jury could still conclude (if the
evidence is construed most favorably to plaintiff) that
Cafarella should have realized from the surrounding
circumstances that Breitkopf likely was an officer.

46

1286. Thus, the Court concludes that
material issues of disputed fact preclude the
issue of causation from being resolved on
summary judgment in connection with the
negligence claim against Cafarella.

agree with Cafarella’s argument that he did
not negligently insert himself into the scene
when he saw an armed, plainclothes,
unidentified man walking towards an active
crime scene. Such a jury, therefore, could
find that Cafarella did not breach any duty.
Thus, this raises a genuine issue of disputed
fact as to whether Cafarella breached his
duty of care under the circumstances.

Accordingly,
the
Court
denies
Cafarella’s motion for summary judgment
on the negligence/wrongful death claims.
3. Application as to the DiGeronimos

Reasonable minds also could disagree
about whether Cafarella proximately caused
Breitkopf’s death. Proximate or legal cause
is defined as that “which in a natural
sequence, unbroken by any new cause,
produces that event and without which that
event would not have occurred.” Rider v.
Syracuse Rapid Transit Ry. Co., 171 N.Y.
139, 147 (1902). An injury is “proximately
caused by an act, or a failure to act,
whenever it appears from the evidence in the
case that the act or omission played a
substantial part in bringing about or actually
causing the injury, and that the injury was
either a direct result or a reasonably
probable consequence of the act or
omission.” Jund v. Town of Hempstead, 941
F.2d 1271, 1286 (2d Cir. 1991). Generally,
an intervening intentional or criminal act
severs the liability of the original tortfeasor.
Kush v. City of Buffalo, 59 N.Y.2d 26, 32–
33 (1983). However, that “doctrine has no
application when the intentional or criminal
intervention of a third party or parties is
reasonably foreseeable.” Id. at 33.
Construing the evidence most favorably to
plaintiff, a reasonable jury could conclude
that it was foreseeable to Cafarella that his
utterance of “gun” could prompt police
officers (such as Gentile) to react with the
use of force, including deadly force.
Construing the facts most favorably to
plaintiff, the Court cannot agree with
Cafarella’s contention that no reasonable
jury could conclude that his utterance thus
“played a substantial part in bringing about
or actually causing the injury.” 941 F.2d at

As a threshold matter, the Court’s
holding supra that any statutory violation by
the DiGeronimos had no practical or
reasonable connection with Breitkopf’s
death also disposes of the negligence claim
against the DiGeronimos, because the
standard for proximate cause (required for a
negligence claim) is more stringent. See
Giuffrida, 100 N.Y.2d at 81. In any event,
the Court analyzes the negligence claim
against the DiGeronimos separately below
and concludes that the claim cannot survive
summary judgment.
a. Negligent Entrustment
Under New York law, a claim for
negligent entrustment of a dangerous
instrumentality is based on the Restatement
(Second) of Torts § 390, which provides:
One who supplies . . . a chattel for
the use of another whom the supplier
knows or has reason to know to be
likely because of his youth,
inexperience, or otherwise, to use it
in a manner involving unreasonable
risk of physical harm to himself . . .
is subject to liability for physical
harm resulting to them.
Restatement (Second) of Torts § 390; see
Splawnik v. DiCaprio, 540 N.Y.S.2d 615,
617 (N.Y. App. Div. 1989). The tort “is
based on the degree of knowledge the
supplier had or should have had concerning
47

circumstances of this case, and (2) no
rational jury could conclude that any alleged
act or omission by the DiGeronimos was the
proximate case of Breitkopf’s death.

the entrustee’s propensity to use the chattel
in an improper or dangerous fashion.” Id. “If
such knowledge can be imputed, the
supplier owes a duty to foreseeable parties
to withhold the chattel from the entrustee.”
540 N.Y.S.2d at 617. Some courts have
construed this tort to apply “solely where the
defendant had knowledge or reason to know
that the user of the item at issue was
someone that ‘a reasonable person would
consider lacking in ordinary prudence.’”
Adeyinka v. Yankee Fiber Control, Inc., 564
F. Supp. 2d 265, 287 (S.D.N.Y. 2008)
(quoting McCarthy v. Sturm, Ruger & Co.,
Inc., 916 F. Supp. 366, 370 (S.D.N.Y.
1996)). Further, as the Splawnik court
recognized, “[m]ost of the case law invoking
this doctrine relates to the entrustment of
guns or motor vehicles to children,
incompetents or intoxicated persons.” 540
N.Y.S.2d at 617 (citations omitted).

b. Duty to Officers on the Premises and
Proximate Cause
The DiGeronimos argue that any alleged
act or omission by them could not have
proximately caused Breitkopf’s death,
because the incident involving Anthony had
ended and Gentile’s actions broke the causal
chain. (DiGeronimo Motion, at 3.) Plaintiff
argues that the DiGeronimos had a duty to
protect the officers on their premises from
foreseeable harm. Specifically, she claims
the DiGeronimos “failed to protect the
police officers initially responding to the
scene from harm from their son,” that
Officer Breitkopf was killed because of this
breach, and that “[i]t was foreseeable that a
police officer involved in or responding to
an altercation with defendants’ son would be
killed in a ‘friendly fire’ exchange.”
(DiGeronimo Opp., at 18–19.)

Defendants’ motion primarily addresses
proximate cause, but they respond to the
merits of the negligent entrustment claim in
their reply. Plaintiff argues that a rational
jury could conclude that defendants knew of
Anthony’s “emotional issues” and “[i]t is
clear Anthony DiGeronimo was someone a
reasonable person would consider lacking in
ordinary prudence.” (DiGeronimo Opp., at
17.)
Defendants counter that plaintiff
neither specifies the nature of Anthony’s
“emotional issues” nor points to evidence
supporting a reasonable inference that the
DiGeronimos knew Anthony had acted or
potentially could act in a manner suggesting
that he could use his knives in a dangerous
manner or that he otherwise was a risk of
harm or danger to others. The Court need
not address this issue because, as discussed
below, summary judgment is warranted on
other grounds, namely: (1) plaintiff cannot
establish that any duty the DiGeronimos
owed to the officers on their premises
extended to protecting officers from a
friendly-fire
shooting
under
the

Plaintiff’s conception of the scope of the
duty is overbroad. “[L]andowners have a
duty to protect tenants, patrons or invitees
from foreseeable harm caused by the
criminal conduct of others while they are on
the premises.” Hamilton, 96 N.Y.2d at 233
(citing Nallan v. Hemsley-Spear, Inc., 50
N.Y.2d 507, 518–19 (1980)). However,
“New York courts have been cautious in
extending liability to defendants for their
failure to control the conduct of others,
‘even where as a practical matter [the]
defendant can exercise such control.’”
September 11 Litig., 280 F. Supp. 2d at 290
(quoting D’Amico v. Christie, 71 N.Y.2d 76,
88 (1987)). “[C]ourts have imposed a duty
when the defendant has control over the
third party tortfeasor’s actions”—which
undisputedly is not the case here—“or the
relationship between the defendant and
48

the proximate cause of Breitkopf’s death.
Proximate cause is lacking when an
intervening act “is of such an extraordinary
nature or so attenuates defendant’s
negligence from the ultimate injury that
responsibility for the injury may not be
reasonably attributed to the defendant.”
Kush, 59 N.Y.2d at 33. Thus, “when such an
intervening cause ‘interrupts the natural
sequence of events, turns aside their course,
prevents the natural and probable result of
the original act or omission, and produces a
different result that could not have been
reasonably anticipated,’ it will prevent a
recovery on account of the act or omission
of the original wrongdoer.” Sheehan v. City
of New York, 40 N.Y.2d 496, 503 (1976)
(citations omitted).
Here,
plaintiff’s
conclusory assertion and the temporal
proximity of the events do not create a
genuine dispute as to causation. It is
uncontroverted that the “normal course of
events” had run and, consequently, the only
reasonable inference is that the intervening
act was “extraordinary under the
circumstances”: Anthony had been shot, the
“slow down” order issued, and the
DiGeronimos had no control over Breitkopf,
Cafarella, Gentile, or Ramos—the latter
three being persons plaintiff argues should
not have been involved in the first place.
Derdiarian v. Felix Contracting Corp., 51
N.Y.2d 308, 315 (1980). “[B]road liability .
. . should not be imposed without a more
tangible showing that defendants were a
direct link in the causal chain that resulted in
plaintiffs’ injuries, and that defendants were
realistically in a position to prevent the
wrongs.” Hamilton, 96 N.Y.2d at 234
(emphasis added). Thus, even construing the
evidence most favorably to plaintiff, a
rational jury could not find “that the gun
used to harm [Breitkopf] came from a
source amenable to the exercise of any duty
of care that plaintiff” would impose upon
the DiGeronimos. Id. Gentile’s shooting of

plaintiff requires the defendant to protect the
plaintiff from the conduct of others.” Id.
According to the New York Court of
Appeals, “[t]he key in each [situation] is that
the defendant’s relationship with either the
tortfeasor or the plaintiff places the
defendant in the best position to protect
against the risk of harm.” Hamilton, 96
N.Y.2d at 233. Under the circumstances of
this case, it is clear the DiGeronimos’ duty
cannot and did not encompass a duty to
protect officers and others at the scene from
any conduct by third parties—such as
another police officer—that occurs on the
premises,
particularly
where
the
DiGeronimos could exert no control over the
police officers or their procedures. See
Waters v. N.Y.C. Hous. Auth., 69 N.Y.2d
225, 228–31 (1987) (holding that owner of
housing project who failed to keep
building’s door locks in good repair did not
owe duty to passerby to protect her from
being dragged off the street into the building
and assaulted, because imposing such duty
would do little to minimize crime, and the
social benefits to be gained did “not warrant
the extension of the landowner’s duty to
maintain secure premises to the millions of
individuals who use the sidewalks of New
York City each day and are thereby exposed
to the dangers of street crime.”). Again, the
DiGeronimos had no right or responsibility
to oversee the police operation on their
premises, and thus had no duty to protect
Breitkopf (or any other officer) from a
friendly-fire incident.
In addition, although plaintiff argues that
“[i]t was foreseeable that a police officer
involved in or responding to an altercation
with defendants’ son would be killed in a
‘friendly fire’ exchange” (DiGeronimo
Opp., at 19), a rational jury would certainly
have to conclude that the events involving
the officers after Anthony’s death were
intervening acts that preclude a finding that
any negligent acts by the DiGeronimos were
49

Breitkopf may have “operat[ed] upon but
[did] not flow from the original negligence.”
Derdiarian, 51 N.Y.2d at 315. Plaintiff has
failed to create a genuine issue of material
fact on the issue of causation as it relates to
the alleged negligence of the DiGeronimos.

Carpenter of Rafter and Associates, 29
Broadway, 14th Floor, New York, NY
10006. Ramos and the MTA are represented
by Steve S. Efron and Renee Lucille Cyr of
the Law Office of Steve S. Efron, 60 East
42nd St., Suite 2020, New York, NY 10165.
Through summary judgment, Cafarella was
represented by Sandra Bonder and Beth
Shapiro of Shapiro, Beilly, Rosenberg,
Aronowitz, Levy & Fox, LLP, 225
Broadway, 13th Floor, New York, NY
10007. Cafarella currently is represented by
Joseph M. Puzo of Zaklukiewicz, Puzo &
Morrissey, LLP, 2701 Sunrise Highway,
Suite 2, Islip Terrance, NY 11752. The
Estate is represented by Jeffrey M. Pincus of
Lewis, Johs, Avallone, Aviles & Kaufman,
LLP, 425 Broadhollow Rd., Suite 400,
Melville, NY 11747, and by Daniel A.
Bartoldus of Lewis, Johs, Avallone, Aviles
& Kaufman, LLP, One CA Plaza, Suite 225,
Islandia, NY 11749. The DiGeronimos are
represented by Joseph H. Perrone of Ryan,
Perrone & Hartlein, P.C., 200 Old Country
Rd., Suite 300, Mineola, NY 11501. The
City is represented by Elizabeth N. Krasnow
of the New York City Law Department, 100
Church St., New York, NY 10007.

Accordingly, the Court grants the
DiGeronimos’
motion
for
summary
judgment on the negligence claim.
IV.

CONCLUSION

For the foregoing reasons, the Court
grants in part and denies in part the motions
for summary judgment with respect to
Gentile, the MTA, and Cafarella, and grants
the motions for summary judgment in their
entirety with respect to Ramos, the City, and
the DiGeronimos. The surviving claims are
the excessive force, battery, and wrongful
death claims against Gentile; the related
vicarious liability claim against the MTA;
and the negligence, wrongful death, and
GML § 205-e claims against Cafarella
(based upon Penal Law Section 190.25).
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 29, 2014
Central Islip, NY
***
Plaintiff is represented by John Zervopolous
and Joseph S. Bavaro of Salenger Sack
Kimmel & Bavaro, LLP, 180 Froehlich
Farm Blvd., Woodbury, NY 11797; Eugene
B. Nathanson, 30 Vesey St., 2d Floor, New
York, NY 10007; and Michael A.
Baranowicz of Montfort, Healy, McGuire &
Salley, 840 Franklin Ave., Garden City, NY
11530. Gentile is represented by George J.
50