Estate of James Knaust et al v. Contreras et al

Filing 68

MEMORANDUM AND ORDER granting in part and denying in part 49 Motion for Summary Judgment; granting 54 Motion for Summary Judgment; For the foregoing reasons, Hess' motion for summary judgment (Docket Entry 49) is GRANTED IN PART and DENIE D IN PART, and the City Defendants' Motion (Docket Entry 54) is GRANTED. Plaintiffs' remaining claim is against Hess for negligence. The Clerk of the Court is directed to TERMINATE Erik Contreras, New York City Police Department, and the Ci ty of New York as defendants in this action. The Clerk of the Court is further directed to TERMINATE Therese Iuzzolino and Elizabeth Knaust in her individual capacity as plaintiffs in this action in light of the Court's dismissal of the loss of society claim. The remaining parties are directed to file a joint proposed pre-trial order that complies with the Individual Rules of this Part on or before September 25, 2017, and appear for a pre-trial conference before the undersigned on October 25, 2017 at 2:30 p.m. So Ordered by Judge Joanna Seybert on 8/23/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ESTATE OF JAMES KNAUST by A. ELIZABETH
KNAUST, ELIZABETH KNAUST, ANTHONY
IUZZOLINO, and THERESE IUZZOLINO,
Plaintiffs,
MEMORANDUM & ORDER
14-CV-2496(JS)(ARL)

-againstERIK CONTRERAS, individually and as
New York City Police Officer,
NEW YORK CITY POLICE DEPARTMENT,
CITY OF NEW YORK, HESS EXPRESS
No. 32550 doing business as Hess
Gas Station, and GERALD PRIOLEAU,

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Julio C. Galarza, Esq.
Galarza Law Office
5020 Sunrise Highway, 2nd Floor
Massapequa Park, NY 11762
For Defendants:
Erik Contreras,
NYPD, City of N.Y.

Brian Jeremy Farrar, Esq.
Tobias Eli Zimmerman, Esq.
New York City Law Department
100 Church Street
New York, NY 10007

Hess Express

Brian J. Donnelly, Esq.
Daniel I. Winter, Esq.
Ahmuty, Demers & McManus
199 Water Street, 16th Floor
New York, NY 10038

SEYBERT, District Judge:
Plaintiffs

Estate

of

James

Knaust

by

A.

Elizabeth

Knaust, Elizabeth Knaust, Anthony Iuzzolino, and Therese Iuzzolino
(collectively, “Plaintiffs”) commenced this action against Erik

Contreras

(“Contreras”),

the

New

York

City

Police

Department

(“NYPD”), and the City of New York (collectively, the “City
Defendants”) and Hess Express doing business as Hess Gas Station
(“Hess”),1 asserting claims pursuant to 42 U.S.C. § 1983 and claims
for false arrest, malicious prosecution, intentional, reckless, or
negligent infliction of emotional distress, negligence, loss of
society, and wrongful death.

Presently pending before the Court

are Hess’ motion for summary judgment, and the City Defendants’
motion for summary judgment.

(See Docket Entries 49 and 54.)

For

the following reasons, Hess’ motion is GRANTED IN PART and DENIED
IN PART, and the City Defendants’ motion is GRANTED.
BACKGROUND2
On November 1, 2012, Anthony Iuzzolino (“Iuzzolino”) and
James Knaust (“Knaust”) went to purchase gasoline at a Hess station
located in Massapequa, NY (the “Hess Station”).

(City Defs.’ 56.1

Plaintiffs also asserted claims against the Nassau County
Police Department and a number of Nassau County Police Officers.
However, those claims have been voluntarily dismissed. (See
Stip. of Dismissal, Docket Entry 64.)
1

The following facts are drawn from the City Defendant’s Rule
56.1 Statement (City Defs.’ 56.1 Stmt., Docket Entry 55), Hess’
Rule 56.1 Statement (Hess’ 56.1 Stmt., Docket Entry 51),
Plaintiffs’ Revised 56.1 Counterstatement with respect to the
City Defendants’ Rule 56.1 Statement (Pls.’ City Defs.’ 56.1
Counterstmt., Docket Entry 63), and Plaintiffs’ Revised 56.1
Counterstatement with respect to Hess’ Rule 56.1 Statement
(Pls.’ Hess 56.1 Counterstmt., Docket Entry 62). All factual
disputes have been noted and all internal quotation marks and
citations have been omitted.
2

2

Stmt. ¶ 1.)

Due to Superstorm Sandy, the line at the Hess Station

was approximately one half-mile long.

(Hess’ 56.1 Stmt. ¶ 4.)

Erik Contreras (“Contreras”), an off-duty police officer with the
New York City Police Department (“NYPD”), was pumping gasoline at
the Hess Station while Iuzzolino and Knaust waited in line.

(City

Defs.’ 56.1 Stmt. ¶¶ 3-5.)
Iuzzolino and Knaust waited on line for approximately
two hours.

(Hess’ 56.1 Stmt. ¶ 5.)

When Iuzzolino and Knaust

reached the gas pumps, Gerald Prioleau (“Prioleau”) entered the
Hess Station on foot with an empty gas can.

(City Defs.’ 56.1

Stmt. ¶ 6.) Iuzzolino observed Prioleau, an African-American male,
speak with the woman in front of him on line and then speak with
the Hess Station cashier; Prioleau made two trips between the woman
and the cashier before the woman finished pumping gas.

(Hess’

56.1

before

Stmt.

¶¶

7-9.)

Prioleau

attempted

to

pump

gas

Iuzzolino started to pump, (Hess’ 56.1 Stmt. ¶ 12), and Iuzzolino
said to Prioleau, “[i]f you touch that pump we are going to have
a problem,” (City Defs.’ 56.1 Stmt. ¶ 8).

A physical altercation

ensued; however, the parties dispute whether Knaust was involved.
(City Defs.’ 56.1 Stmt. ¶ 9; Pls.’ City Defs.’ 56.1 Counterstmt.
¶ 9; Hess’ 56.1 Stmt. ¶ 14.)3

Plaintiffs allege that Iuzzolino was facing the pump when
Prioleau placed him in a headlock, and straddled him and hit him
in the face, chest, and neck when he fell to the ground. (Pls.’
City Defs.’ 56.1 Counterstmt. ¶ 9.) Plaintiffs further allege
3

3

The parties dispute how the altercation concluded.

The

City Defendants allege that “Contreras intervened and broke up the
altercation.”

(City Defs.’ 56.1 Stmt. ¶ 10.)

Hess alleges that

“[o]ther patrons in the gas station attempted to break up the
fight, which lasted approximately 30 seconds.”
¶ 16.)

(Hess 56.1 Stmt.

Plaintiffs allege that Contreras identified himself as an

off-duty

NYPD

officer

and

Knaust

and

Iuzzolino

Contreras’ verbal direction to stop fighting.
56.1 Counterstmt. ¶ 10.)

listened

to

(Pls.’ City Defs.’

Plaintiffs contend that Prioleau tried

to get away from Contreras and kicked and punched Contreras, and
Contreras struck Prioleau in the head and face to try and restrain
him.

(Pls.’ City Defs.’ 56.1 Counterstmt. ¶ 10.)
Contreras called 911 to report the incident and request

assistance from the Nassau County Police Department (“NCPD”).
(City Defs.’ 56.1 Stmt. ¶ 12.)

Plaintiffs allege that Contreras

told the 911 operator that “the person he was holding [Prioleau]
tried to assault him and that that person tried to assault another
person before assaulting him.”

(Pls.’ City Defs.’ 56.1 Stmt.

¶ 11.) Plaintiffs also allege that Contreras told the 911 operator
that “[Prioleau] attacked Contreras when Contreras tried to stop
him [Prioleau]; Contreras had Prioleau on the ground restrained

that Iuzzolino did not hit Prioleau, and Iuzzolino sustained
injuries to his face, lip, elbow, and knees. (Pls.’ City Defs.’
56.1 Counterstmt. ¶ 9.)
4

because Prioleau tried to get away.” (Pls.’ City Defs.’ 56.1 Stmt.
¶ 11.)

Following the incident, Iuzzolino continued pumping gas

into four gas cans.
I.

(Hess 56.1 Stmt. ¶ 18.)

The County Investigation
NCPD arrived at the Hess Station within five minutes of

the altercation.

(Hess 56.1 Stmt. ¶ 18.)

Plaintiffs allege that

the responding officers observed Contreras holding Prioleau on the
ground when they arrived.

(Pls.’ City Defs. 56.1 Stmt. ¶ 13.)

Plaintiffs note that Contreras’ statement to the police (the “32B
Statement”) indicates that Contreras talked to Knaust, Iuzzolino,
and Prioleau and got them to stop fighting, but does not state
that Contreras had to restrain Prioleau or that Prioleau kicked
and punched Contreras to get away.
¶ 13.)

(Pls.’ City Defs.’ 56.1 Stmt.

The responding officers noted that Prioleau was bleeding

and had sustained visible injuries to his face.
Stmt. ¶ 15.)
him.

(City Defs.’ 56.1

Plaintiffs note that Contreras also had blood on

(Pls.’ City Defs. 56.1 Stmt. ¶ 13.)
Prioleau advised the responding officers that a pregnant

woman gave him permission to use the pump, but Iuzzolino stepped
in between him and the pump and told him “[i]f you touch this pump,
we will have a problem.” (City Defs.’ 56.1 Stmt. ¶ 16.) Plaintiffs
allege that the officers did not take a statement from the pregnant
woman, or obtain her name and contact information.
Defs.’ 56.1 Stmt. ¶ 16.)

(Pls.’ City

Prioleau also told police that after he
5

tried to use the pump, “Iuzzolino and Knaust knocked him to the
ground and slammed his head into the cement multiple times, causing
lacerations, swelling and pain.”

(City Defs.’ 56.1 Stmt. ¶ 17.)

The City Defendants allege that the pregnant woman provided a
statement

to

NCPD

Officer

Beyerlein

that

is

consistent

Prioleau’s written account and Contreras’ testimony.
56.1 Stmt. ¶ 18.)

(City Defs.’

Plaintiffs dispute that allegation.

City Defs.’ 56.1 Stmt. ¶ 18.)

with

(Pls.’

The City Defendants also allege

that other witnesses aside from Prioleau, Contreras, and the
pregnant

woman

told

attacked Prioleau.

NCPD

officers

that

Iuzozlino

(City Defs.’ 56.1 Stmt. ¶ 19.)

similarly dispute that allegation.

and

Knaust

Plaintiffs

(Pls.’ City Defs.’ 56.1 Stmt.

¶ 19.)
Prioleau advised Officer Beyerlein that he wanted to
press charges against Iuzzolino and Knaust.
Stmt.

¶

20.)

Iuzzolino

and

Knaust

were

(City Defs.’ 56.1
arrested;

however,

Contreras did not participate in the arrest and played no role in
their prosecution.

(City Defs.’ 56.1 Stmt. ¶¶ 21-22.)

Plaintiffs

allege that Contreras’ “false statements” led to their arrest.
(Pls.’ City Defs.’ 56.1 Stmt. ¶ 22.)

Iuzzolino did not receive

medical treatment while he was in custody and while he saw a doctor
a “couple days” after the incident, he did not receive treatment
or medication.

(Hess’ 56.1 Stmt. ¶ 22.)

6

II.

The Hess Station Cashier
Hess alleges that prior to the subject incident, the

line for gas at the Hess Station was “moving in an orderly
fashion.”

(Hess’ 56.1 Stmt. ¶ 23.)

Mirza Baig (“Baig”), a sales

associate, was working at the Hess Station on the day of the
incident.
tall,

(Hess’ 56.1 Stmt. ¶¶ 25-26.)

African-American

male

later

Baig testified that a

identified

as

Prioleau

approached the booth and asked for one gallon of gas because his
car was stuck.

(Hess’ 56.1 Stmt. ¶ 28.)

Hess alleges that Baig

told Prioleau that “there was a long line and that he could not
give him gas” and “advised Prioleau that he could ask someone at
the pumps to see if they would let him pump gas.”
Stmt. ¶ 29.)

Plaintiffs allege that Prioleau gave Baig twenty

dollars for one gallon of gas.
29.)

(Hess’ 56.1

(Pls.’ Hess 56.1 Counterstmt. ¶

However, Hess alleges that Baig testified that he did not

accept money from Prioleau.

(Hess’ 56.1 Stmt. ¶ 31.)

Baig observed Prioleau speaking with someone at the pump
but “did not see what happened due to the other people on line.”
(Hess’ 56.1 Stmt. ¶ 30.)
holding another man down.

Baig observed an off-duty police officer
(Hess’ 56.1 Stmt. ¶ 32.)

The parties

dispute whether Baig spoke to any police officers on the date of
the incident. (Hess’ 56.1 Stmt. ¶ 34; Pls.’ Hess 56.1 Counterstmt.
¶ 34.)

No other altercations occurred while Baig was on duty that

day; however, Plaintiffs allege that the subject incident was not
7

the only one that occurred on November 1, 2012.

(Hess’ 56.1 Stmt.

¶ 35; Pls.’ Hess 56.1 Counterstmt. ¶ 35.)
III. The City Defendants’ Motion
On October 14, 2016, the City Defendants filed their
motion for summary judgment.
Docket Entry 54.)

(See generally City Defs.’ Mot.,

The City Defendants argue that NYPD is not a

suable entity and Plaintiffs have not established a claim for
municipal liability against the City of New York (the “City”).
(City Defs.’ Br., Docket Entry 57, at 8-10.)

They further contend

that Plaintiffs failed to comply with New York General Municipal
Law’s notice of claim provisions with respect to any state law
claims against the City.

(City Defs.’ Br. at 25-26.)

The City Defendants also argue that Plaintiffs cannot
establish a Section 1983 claim against Contreras.
Br. at 9-26.)

(City Defs.’

The City Defendants argue that Contreras was not

personally involved in a constitutional violation, as there is no
evidence that Contreras acted with intent to deprive Iuzzolino and
Knaust of their constitutional rights.
12.)

(City Defs.’ Br. at 10-

The City Defendants also allege that while Plaintiffs

characterize Contreras’ 32B Statement as false, it is, at best,
incomplete, and Plaintiffs cannot establish that the 32B Statement
was

intentionally

Plaintiffs’ arrests.

incomplete

or

that

Contreras

(City Defs.’ Br. at 12-14.)

instigated

Additionally,

the City Defendants argue that the NCPD officers had an independent
8

basis for probable cause that “breaks the chain of causation
between Plaintiffs’ arrests and any false statement given by
Contreras, insulating him from liability.”

(City Defs.’ Br. at

13-14.)
The City Defendants further aver that Plaintiffs have
not demonstrated any violations of their First, Fourth, Fifth,
Sixth, or Fourteenth Amendment rights.
23.)

(City Defs.’ Br. at 15-

In particular, the City Defendants argue that Plaintiffs

have failed to establish a Fourth Amendment violation, as Iuzzolino
and Knaust were not stopped, detained, or searched prior to being
arrested; NCPD had probable cause to arrest Iuzzolino and Knaust;
and Contreras was not involved in Iuzzolino and Knaust’s criminal
prosecution.

(City Defs.’ Br. at 15-19.)

The City Defendants

also allege that Elizabeth Knaust and Therese Iuzzolino cannot
assert a familial association claim since that claim is not
available

for

“emotional

distress,

loss

of

society,

loss

of

services, or any other consequent collateral injuries allegedly
suffered personally by a victim’s family members.”

(City Defs.’

Br. at 22-23 (internal quotation marks and citation omitted).)
Finally, the City Defendants argue that Contreras is entitled to
qualified immunity.

(City Defs.’ Br. at 23-25.)

Plaintiffs oppose the City Defendants’ motion and allege
that Contreras was acting under color of state law.
Defs.’ Opp. Br., Docket Entry 60, at 10-12.)
9

(Pls.’ City

Plaintiffs argue

that Contreras’ failure to provide NCPD with all information was
“egregious” and “[i]n so doing, Contreras willingly and purposely-though impermissibly--implicated Plaintiffs as the aggressors
despite compelling evidence to the contrary.”

(Pls.’ City Defs.’

Opp. Br. at 11-12.)
In reply, the City Defendants argue that Plaintiffs’
claims

against

Contreras

under

the

First,

Fifth,

and

Sixth

Amendments, and the Fourteenth Amendment Due Process and Equal
Protection clauses should be deemed abandoned based on their
failure to respond to the City Defendants’ arguments. (City Defs.’
Reply, Docket Entry 67, at 2-3.)

The City Defendants also argue

that Plaintiffs’ state law claims against the City should similarly
be deemed abandoned.
IV.

(City Defs.’ Reply at 2-3.)

Hess’ Motion
Hess moves for summary judgment and argues that the

Complaint should be construed as only asserting state law claims
against Hess--particularly, claims for negligence and negligent
infliction of emotional distress.4

(Hess’ Br. at 5-8.)

Hess

argues that it did not have a duty to protect Knaust and Iuzzolino
from a “spontaneous physical altercation,” and Plaintiffs caused
the subject incident by “aggressively attempting to prevent a third

While Hess refers to itself as “Speedway,” for ease of
reference the Court will continue to refer to this defendant as
Hess. (Hess’ Br., Docket Entry 52, at 5.)
4

10

party from obtaining gas before them.”
Hess

also

argues

sufficiently

that

outrageous

Plaintiffs
to

state

a

(Hess’ Br. at 10, 12.)

have
claim

negligent infliction of emotional distress.
Finally,

Hess

alleges

that

not

Plaintiffs

for

alleged

conduct

intentional

or

(Hess’ Br. at 14-15.)
have

not

established

punitive damages, and their claim for the wrongful death of James
Knaust5 has no merit in light of the absence of any evidence that
Knaust complained of mental issues related to the subject incident.
(Hess’ Br. at 17.)
Plaintiffs argue that Hess owed a duty to the public as
a landowner and breached its duty to Plaintiffs to the extent that
Baig “negligently advised Prioleau that he could approach someone
currently pumping gas, having waited on line themselves, and
attempt to secure their permission to essentially cut all remaining
customers in line,” and accepted the “exorbitant” amount of twenty
dollars for one gallon of gas.

(Pls.’ Hess Opp. Br. at 9-11.)

Plaintiffs allege that there are issues of fact as to proximate
cause that preclude the award of summary judgment.
Opp. Br. at 12-13.)

Plaintiffs also argue that their negligent

infliction of emotional distress claim has merit.
Opp. Br. at 13.)

(Pls.’ Hess

(Pls.’ Hess

Plaintiffs aver that Baig’s conduct “exceeded

the bounds of decency and was patently outrageous under the

Hess alleges that Knaust died of a drug overdose on April 4,
2014. (Hess’ Br. at 17.)
5

11

exceptional

and

emotionally

turbulent

circumstances

following

Superstorm Sandy,” and Knaust and Iuzzolino “rightfully fear[ed]
for their safety.”

(Pls.’ Hess Opp. Br. at 13.)

In reply, Hess argues that it had no duty to protect its
patrons from “unforeseeable and unexpected assaults.”
Reply Br., Docket Entry 66, at 2.)

(Hess’

Hess also contends that Baig

denied accepting money from Prioleau, and “[t]he only mentions of
such an exchange are contained in inadmissible hearsay testimony
of police officers, none of whom directly observed the events in
question, while the non-hearsay testimony provides no indication
of any transaction.”

(Hess’ Reply Br. at 5.)
DISCUSSION

Summary

judgment

will

be

granted

where

the

movant

demonstrates 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).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed 2d 202 (1986).

In

determining whether an award of summary judgment is appropriate,
the

Court

considers

the

pleadings,

deposition

testimony,

interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to

12

affidavits.

Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see

also FED. R. CIV. P. 56(c).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.
1986).

Williams v. Smith, 781 F.2d 319, 323 (2d Cir.

See also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.

1991) (a motion for summary judgment will not be defeated based
“merely upon a ‘metaphysical doubt concerning the facts’ or on the
basis of conjecture”) (internal citations omitted).

However, in

reviewing the summary judgment record, “‘the court is required to
resolve

all

ambiguities

and

draw

all

permissible

factual

inferences in favor of the party against whom summary judgment is
sought.’” Sheet Metal Workers’ Nat’l Pension Fund v. Vadaris Tech.
Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,
2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.
1997)).
At

the

outset,

the

Court

notes

that

the

Complaint

contains the following claims, without specification as to which
13

Defendants each claim is asserted against: (1) Section 1983 claim
alleging violations of the Fourth and Fourteenth Amendment right
“to be free from unreasonable searches and seizures, false arrest
and

malicious

prosecution,”

(2)

Section

1983

claim

alleging

violations of the due process clause of the Fourteenth Amendment,
(3) Section 1983 claim for interference with family relationships
in violation of the First and Fourteenth Amendments, (4) false
arrest and malicious prosecution, (5) intentional, reckless or
negligent infliction of emotional distress, (6) negligence, (7)
loss of society, and (8) wrongful death.

(See generally Compl.)

The Court construes the Complaint as asserting all of these claims
against the City Defendants, and only the claims for intentional,
reckless

or

negligent

infliction

of

emotional

distress,

negligence, loss of society, and wrongful death against Hess.
However, “[b]ecause the NYPD is an administrative arm of
the City of New York, a municipality, the NYPD does not have a
separate legal identity and therefore does not have the capacity
to be sued.”

Santiago v. City of N.Y., No. 06-CV-1550, 2008 WL

2854261, at *3 (S.D.N.Y. Jul. 21, 2008).

Accordingly, all claims

against NYPD are DISMISSED and the Clerk of the Court is directed
to TERMINATE NYPD as a defendant in this action.
Additionally, the Court concurs with the City Defendants
that

Plaintiffs

have

abandoned

a

number

of

their

claims.

Particularly, Plaintiffs have failed to respond to Defendants’
14

arguments regarding their Section 1983 claims asserting violations
of the Fourteenth Amendment due process clause and their Section
1983 claim for interference with family relationships in violation
of the First and Fourteenth Amendments.6
at

2-3.)

Plaintiffs

also

have

not

(City Defs.’ Reply Br.
responded

to

the

City

Defendants’ arguments that: (1) with the exception of the malicious
prosecution claim, their state law claims against the City and
Contreras are defective based on Plaintiffs’ failure to timely
file a Notice of Claim, (2) the malicious prosecution claim fails
as it is undisputed that Contreras did not play any role in the
criminal

prosecution

against

Knaust

and

Iuzzolino,

and

(3)

Plaintiffs have failed to state a Section 1983 claim against the
City based on the absence of any evidence of a policy or custom.
(City Defs.’ Br. at 25-26.)

Indeed, Plaintiffs have withdrawn

“all federal constitutional claims with prejudice” against the
City.
also

(See Pls.’ City Defs.’ Opp. Br. at 13.)
characterized

their

second

state

law

Plaintiffs have
claim

as

one

for

To the extent Plaintiffs’ first Section 1983 claim--which
addresses alleged violations of their Fourth and Fourteenth
Amendment right to be free from searches and seizures, false
arrest, and malicious prosecution, (Compl. ¶ 56)--also
references the First, Fifth, and Sixth Amendments, as well as
the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, (see Compl. ¶ 67), Plaintiffs similarly fail to
address Defendants’ arguments as to any Section 1983 claim based
on violations of the First, Fifth, or Sixth Amendments, (City
Defs.’ Br. at 20), or the Due Process or Equal Protection
Clauses, (City Defs.’ Br. at 22-23).
6

15

negligent infliction of emotional distress, (see Pls.’ Hess Opp.
Br. at 13), and failed to address any claim for intentional
infliction of emotional distress, wrongful death, or loss of
society.

Accordingly,

the

Court

DISMISSES

these

claims

as

abandoned.

See Elmessaoudi v. Mark 2 Restaurant LLC, No. 14-CV-

4560, 2016 WL 4992582, at *15 (S.D.N.Y. Sept. 15, 2016)(“[f]ederal
courts have the discretion to deem a claim abandoned when a party
moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way”)
(internal quotation marks and citation omitted).
Thus, Plaintiffs’ remaining claim are: (1) a Section
1983 claim against Contreras based violations of their Fourth and
Fourteenth Amendment rights “to be free from unreasonable searches
and seizures, false arrest and malicious prosecution,” (see Compl.
¶¶ 56-70), and (2) state law claims for negligence and negligent
infliction of emotional distress against Hess, (see Compl. ¶¶ 8791).
I.

City Defendants’ Motion
To state a claim pursuant to Section 1983, “a plaintiff

must establish that the defendant deprived him of a federal or
constitutional right while acting under the color of state law.”
Cox v. Warwick Valley Ctr. Sch. Dist., 654 F.3d 267, 272 (2d Cir.
2011).

For purposes of this motion, the City Defendants do not

dispute that Contreras acted under color of state law.
16

(City

Defs.’

Br.

references

at

9,

n.11.)

alleged

Additionally,

violations

of

the

while

right

the

“to

Complaint

be

free

of

unreasonable searches and seizures, false arrest, and malicious
prosecution,” (Compl. ¶ 56), it is undisputed that Contreras was
not involved in the prosecution of Iuzzolino and Knaust, and
Plaintiffs have not alleged that they were searched by Contreras.
Thus, the Court construes the Complaint as asserting a Section
1983 claim against Contreras based on false arrest.
“Claims

for

false

arrest,

brought

under

§

1983

to

vindicate the Fourth and Fourteenth Amendment right to be free
from unreasonable seizure, are substantially the same as claims
for false arrest under New York state law.”

McNamara v. City of

N.Y., No. 06-CV-5585, 2009 WL 735135, at *4 (S.D.N.Y. Mar. 20,
2009) (internal quotation marks and citation omitted).

To state

a claim for false arrest under New York law, the plaintiff must
establish:

“‘(1)

the

defendant

intended

to

confine

[the

plaintiff], (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and (4) the
confinement was not otherwise privileged.’”

Weintraub v. Bd. of

Educ. of City of N.Y., 423 F. Supp. 2d 38, 53 (E.D.N.Y. 2006), on
reconsideration in part, 489 F. Supp. 2d 209 (E.D.N.Y. 2007), aff’d
sub. nom. Weintraub v. Bd. of Educ. of the City Sch. Dist. of the
City of N.Y., 593 F.3d 196 (2d Cir. 2010) (quoting Singer v. Fulton

17

Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); alteration in
original).
Here, it is undisputed that Contreras did not arrest
Iuzzolino and Knaust.

However, “a claim of false arrest or false

imprisonment may lie where a plaintiff can show that . . .
defendants instigated his arrest, thereby making the police . . .
agents in accomplishing their intent to confine the plaintiff.”
Weintraub, 423 F. Supp. 2d at 56 (internal quotation marks and
citations omitted; alterations in original).

See also Paul v.

Bank of Am. Corp., No. 09-CV-1932, 2011 WL 684083, at *6 (E.D.N.Y.
Feb. 16, 2011) (“a defendant is liable for false arrest if, with
the

intent

statements

to
to

have
the

the

police

plaintiff
and

instigates

Weintraub, 423 F. Supp. 2d at 56)).
erroneously

reports

a

arrested,

suspected

an

he

makes

arrest”

false

(citing

Conversely, “[i]f a defendant
crime,

but

in

no

other

way

instigates the arrest, he is not liable for false imprisonment.”
Paul, 2011 WL 684083, at *6.

“[W]hether a defendant’s conduct

rises to the level of instigating is a question of fact.”

Paul,

2011 WL 684083, at *7.
The Second Circuit has held, in the context of a case
involving a civilian defendant, that liability for false arrest
only

attaches

where

the

defendant

“affirmatively

induced

the

officer to act, such as taking an active part in the arrest and
procuring it to be made or showing active, officious and undue
18

zeal to the point where the officer is not acting of his own
volition.”

Vlach v. Staiano, 604 F. App’x 77, 78 (2d Cir. 2015)

(summary order; internal quotation marks and citation omitted).
The Court finds that no reasonable juror could find that
Contreras instigated Iuzzolino and Knaust’s arrest.

The record

does not indicate that Contreras was actively involved in the
arrest, as his involvement in the incident was limited to calling
911, speaking with Officer Quinn of the NCPD, and providing the
32B Statement.

(See Contreras’ 32B Stmt., City Defs.’ Mot. Ex. C,

Docket Entry 56-3.)

Plaintiffs have not alleged that Contreras

requested that anyone be arrested.

In fact, Prioleau signed a

supporting deposition in which he stated that he was “jumped” by
Iuzzolino

and

Knaust

and

requested

that

they

be

arrested.

(Prioleau’s 32B Stmt., City Defs.’ Mot. Ex. B, Docket Entry 562.)
This case stands in stark contrast to the facts in
McNamara, where the Court denied summary judgment with respect to
the plaintiff’s Section 1983 false arrest claim based on an offduty

police

detective’s

alleged

McNamara, 2009 WL 735135, at *4.

instigation

of

his

arrest.

In that case, the plaintiff had

an altercation with the off-duty police detective in which the
detective

kicked

the

plaintiff

in

the

groin,

the

plaintiff

responded by kicking him in the knee, and the detective pulled out
a gun and pointed it at the plaintiff.
19

Id. at *1.

The plaintiff

was arrested based on the detective’s report that the plaintiff
pulled a knife on him; however, the charges were ultimately
dismissed.

Id. at *2.

The court held that a reasonable jury could

find that the detective “knowingly made a false report . . . in
order to have the on-duty officers carry out his intent to have
[p]laintiff falsely arrested” in order to conceal his altercation
with the plaintiff.

Id.

Conversely, the record in this case does

not contain any evidence that Contreras knowingly made a false
statement to the NCPD, nor have Plaintiffs proffered any evidence
that Contreras was motivated by a nefarious objective.
Plaintiffs

fail

to

respond

directly

to

the

City

Defendants’ argument that Contreras did not instigate the arrest.
(Pls.’ City Defs.’ Opp. Br. at 10-11.)

Instead, Plaintiffs focus

on Contreras’ alleged failure to disclose to NCPD officers that
Prioleau resisted his direction to stop fighting and assaulted
him.
by

(Pls.’ City Defs.’ Opp. Br. at 12.)

failing

to

discrepancies
Contreras

disclose
between

“implicated

“omissions”

his

account

Plaintiffs

or
and

as

compelling evidence to the contrary.”

Plaintiffs argue that
explain
the

the

the

other

“glaring

evidence,”

aggressors

despite

(Pls.’ City Defs.’ Opp. Br.

at 12.)
The Court acknowledges that Contreras’ 32B Statement
does not state that Contreras restrained Prioleau or that Prioleau
attempted

to

assault

Plaintiff.
20

(See

Contreras’

32B

Stmt.)

However, the fact that Contreras restrained Prioleau to prevent
him from leaving the Hess Station and Prioleau attempted to assault
Contreras, (see Contreras’ Dep. Tr., City Defs.’ Mot. Ex. G, Docket
Entry 56-7, 58:24-60:16), has no relevance to NCPD’s investigation
of

the

Prioleau.
want

to

physical

altercation

between

Iuzzolino,

Knaust,

and

Parenthetically, Contreras testified that he did not
press

charges

against

Prioleau

because

“[h]e

never

physically punched me, he did--he was acting erratic and his arms
were

flailing

because

he

didn’t

want

to

stop

and

relax.”

(Contreras’ Dep. Tr. 60:9-16.)
The Court is also unpersuaded by Plaintiffs’ apparent
attempt to raise issues of fact based on “discrepancies between
[Contreras’] account and the other evidence.”
Opp. Br. at 12.)

(Pls.’ City Defs.’

Plaintiffs do not specify the “other evidence”

that is arguably inconsistent with Contreras’ account.

(Pls.’

City Defs.’ Opp. Br. at 12.) To the extent Plaintiffs are alleging
that discrepancies exist between the 911 call and Contreras’ 32B
Statement, they have failed to proffer a transcript or audio
recording of the 911 call.7

(See Pls.’ City Defs.’ Opp. Br. at

11-12 (“Contreras’ recitation of the aggressor of the incident
seems to make a [180] degree shift between his ‘heat of the moment’

The Court notes that the Complaint details a portion of the 911
call. (Compl. ¶ 32.) While the Complaint states that a
“complete transcript” of the call is annexed at Exhibit A, no
such Exhibit is attached to the Complaint. (See Compl. ¶ 32.)
7

21

excited utterance to 911 and witnesses and his more contemplative
formal statements to Nassau County police officers thereafter”).)
Moreover,

even

assuming,

arguendo,

that

Contreras

instigated Iuzzolino and Knaust’s arrest, the Court finds that
NCPD possessed probable cause.

“Probable cause makes an arrest

privileged and is a complete defense to Fourth Amendment claims of
false arrest.”
(E.D.N.Y. 2015).

See Fogelman v. Donato, 111 F. Supp. 3d 282, 285
Probable cause exists where the police officers

have “knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed
or is committing a crime.”

McNamara, 2009 WL 735135, at *5

(internal quotation marks and citation omitted).

The question of

whether an arrest was valid does not depend on the ultimate
determination of guilt or innocence, and the Court only considers
the information available to the arresting officer at the time of
the arrest.

Id.

“[A] law enforcement official has probable cause to
arrest if he received his information from some person, normally
the putative victim or eyewitness, unless the circumstances raise
doubt as to the person’s veracity.”

Fabrikant v. French, 691 F.3d

193, 216 (2d Cir. 2012) (internal quotation marks and citation
omitted; alteration in original).

It is undisputed that Prioleau

signed a supporting deposition attesting that he was “jumped” by
22

Iuzzolino and Knaust and they “knocked [him] down and slammed [his]
head to the cement multiple times.”

(Prioleau 32B Stmt.)

Officer

Beyerlein testified that when she arrived on the scene, she
observed Prioleau sitting on the ground bleeding; while the amount
of blood was “nothing crazy,” she testified that Prioleau “was
injured and he had blood.”

(Beyerlein’s Dep. Tr., Defs.’ Mot.

Ex. F, Docket Entry 56-6, 25:11-26:9.)
Plaintiffs have not proffered any evidence demonstrating
that NCPD should have doubted Prioleau’s veracity.

Cf. DiStefano

v. Sedita, No. 11-CV-1125, 2014 WL 349251, at *4 (E.D.N.Y. Jan. 31,
2014) (“[t]he most common situation in which such doubts [of
veracity] arise is when there exists a prior relationship between
the victim and the accused that gives rise to a motive for a false
accusation”) (internal quotation marks and citation omitted).
While Iuzzolino testified that he told NCPD that he was attacked,
he did not cause Prioleau’s injuries, and he wanted to press
charges against Prioleau, (Iuzzolino’s Dep. Tr., Defs.’ Mot. at
Ex. D, Docket Entry 56-4, 52:24-54:14), his protestations of
innocence did not vitiate probable cause.

Fogelman, 111 F. Supp.

3d at 285 (“[n]either an arrestee’s protestations of innocence nor
a putative victim’s inconsistent statements necessarily vitiate
probable cause”).

See also Wieder v. City of N.Y., 569 F. App’x

28, 29 (2d Cir. 2014) (“[o]nce a police officer has a reasonable
basis for believing there is probable cause, he is not required to
23

explore

and

eliminate

every

theoretically

plausible

claim

of

innocence before making an arrest”) (internal quotation marks and
citation omitted).
Further, Officer Beyerlein testified that a pregnant
woman she spoke with at the Hess Station said that Prioleau asked
her for permission to fill his gas can in front of her, and “when
[Prioleau] went over to the pump, [ ] two male whites started
saying something to him and then a fight ensued and it even went
into the back of her car.”

(Beyerlein’s Dep. Tr. 27:11-22.)

Officer Beyerlein testified that the pregnant woman also said that
“[o]ne of the male whites made a comment . . . if you touch the
pump you are going to have a problem.”
27:19-28:3.)

(Beyerlein’s Dep. Tr.

Officer Beyerlein also stated that she heard other

people at the Hess Station “saying, in sum and substance, the
victim was assaulted by two other people.”

(Beyerlein’s Dep. Tr.

75:9-13.)
Thus,

after

reviewing

the

“totality

of

the

circumstances,” the Court finds that NCPD possessed probable cause
to arrest Iuzzolino and Knaust.
*4.

See DiStefano, 2014 WL 349251, at

Accordingly, the City Defendants’ motion for summary judgment

is GRANTED.

The Court need not determine whether Contreras was

entitled to qualified immunity.

(See City Defs.’ Br. at 23-25.)

24

II.

Hess’ Motion
As set forth above, the Court construes the Complaint as

asserting

claims

for

emotional distress.
A.

negligence

and

negligent

infliction

of

The Court will address each claim in turn.

Negligence
Pursuant to New York law, the elements of a negligence

claim consist of: “(i) a duty owed to the plaintiff by the
defendant; (ii) breach of that duty; and (iii) injury substantially
caused by that breach.”

Gray v. Denny’s Corp., 535 F. App’x 14,

15 (2d Cir. 2013) (internal quotation marks and citation omitted).
“Owners of public establishments have a duty to protect their
patrons from reasonably foreseeable harm.”

Cort v. Marshall’s

Dep’t Store, No. 14-CV-7385, 2015 WL 9582426, at *4 (E.D.N.Y. Dec.
29, 2015). However, this duty only arises where the premises owner
“‘has [the] opportunity to control such conduct, and is reasonably
aware of the need for such control.’”

Id. (quoting Hegarty v.

Tracy, 125 A.D.3d 804, 4 N.Y.S.3d 254, 255 (2d Dep’t 2015)).
Accordingly, an owner does not have a duty to safeguard patrons
from

“unforeseeable

assaults”;

however,

the

defendant

may

be

liable for an attack where it could have been anticipated or
prevented.

Id.
Hess concedes that as a landowner, it has a duty to

prevent harm to patrons on its property, but argues that it “had
no notice that would have made the subject altercation foreseeable,
25

and there was no duty to control the environment or implement rules
to

protect

its

patrons.”

(Hess’

Br.

at

9-10.)

The

Court

disagrees.
Baig, the sales associate on duty at the time of the
incident, testified that the line at the Hess station was half a
mile long and it was “super busy” since other gas stations in the
area were closed because they had no electricity.

(Baig’s Dep.

Tr., Hess’ Mot. Ex. D, Docket Entry 50-4, 14:2-7, 14:21-15:4.)

He

also testified that an African-American male told him that his car
was stuck and he needed a gallon of gas, and Baig responded
“‘[t]here is a long line.
they allow.’”

Go to the line and request somebody if

(Baig’s Dep. Tr. 12:2-16, 42:3-9.)

A reasonable

juror could find that in the wake of Superstorm Sandy--when
gasoline was scarce and the line at the Hess Station stretched
half a mile long--it is foreseeable that customers waiting hours
for gasoline could become unruly if an individual tried to cut the
line, and Hess breached its duty of care when Baig suggested that
Prioleau could cut the line if he obtained permission from a
customer.

Contrary to Hess’ argument, the Court declines to find

that Iuzzolino’s testimony that the altercation was a “sudden
event,” (Iuzzolino’s Dep. Tr., City Defs.’ Mot. Ex. D, Docket Entry
56-4, 99:6-10), establishes a conclusive lack of foreseeability.
(See Hess’ Reply Br. at 4.)

26

While Hess attempts to analogize this case to Millan v.
AMF Bowling Ctrs., Inc., 38 A.D.3d 860, 861, 833 N.Y.S.2d 173, 174
(2d Dep’t 2007), the Court is not persuaded.

In Millian, the

plaintiff brought a negligence claim after he was assaulted at a
bowling alley owned by the defendant.

Millian, 38 A.D.3d at 860.

However, the plaintiff testified that prior to his assault, the
assailant had only laughed at him, and the defendant’s employee
confirmed that the assailant had not caused earlier problems and
the assault “happened suddenly and without warning.”

Id. at 861.

The Court noted that “the owner of a public establishment has no
duty

to

protect

patrons

against

unforeseeable

and

unexpected

assaults” and held that the plaintiff failed to raise triable
issues of fact and “failed to demonstrate that the defendant’s
employees

could

reasonably

assault of the plaintiff.”

have

anticipated

or

prevented

the

Id. at 860-61.

While the Court acknowledges that Baig testified that
this was the only incident that occurred while he was at the Hess
Station on November 1st, (Baig’s Dep. Tr. 28:19-29:2), Baig was
aware of the long lines and extended wait for gas and a reasonable
juror could find that he could have prevented the subject assault
by not suggesting to Prioleau that he attempt to cut the line.
Parenthetically, although Baig testified that he started his shift
at “maybe four o’clock,” (Baig’s Dep. Tr. 11:17-18), Beyerlein
testified that on that same date, she responded to the Hess Station
27

at 3:02 p.m. regarding “another disturbance,” (Beyerlein’s Dep.
Tr. 17:20-18:6).
Hess characterizes the subject incident as a “sudden and
spontaneous physical altercation” and essentially argues that
Iuzzolino and Knaust’s actions were a superseding cause absolving
Hess of liability.

(See Hess’ Br. at 12 (“[p]laintiffs were the

sole cause of this incident by aggressively attempting to prevent
a third party from obtaining gas before them”).)

Pursuant to New

York law, “where the plaintiff’s intervening actions are not a
normal and foreseeable consequence of the defendant’s conduct, the
plaintiff’s conduct becomes a superseding cause which absolves the
defendant of liability.”

Gray, 535 F. App’x at 17-18 (internal

quotation marks and citation omitted).
superseding

cause,

an

intervening

However, to be deemed a

act

must

be

“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.”
quotation marks and citations omitted).

Id. at 18 (internal
Cf. Vetrone v. Ha Di

Corp., 22 A.D.3d 835, 839, 803 N.Y.S.2d 156, 161 (2d Dep’t 2005)
(“intervening criminal acts may still give rise to liability under
ordinary principles of negligence where there is a sufficient
underlying legal relationship between the parties and where the
acts are a reasonably foreseeable consequence of circumstances

28

created by the defendant”) (internal quotation marks and citation
omitted).
The Court finds that there are issues of fact as to
whether Iuzzolino’s actions in approaching Prioleau--or, for that
matter,

Prioleau’s

alleged

conduct

in

starting

the

physical

altercation--constitute intervening acts that break the chain of
causation.

The Court cannot conclude as a matter of law that

Iuzzolino’s exchange with Prioleau and the physical altercation
that

followed

were

not

a

foreseeable

consequence

of

Baig’s

suggestion to Prioleau that he obtain permission to cut the line.
See Gray, 535 F. App’x at 18 (holding that there were issues of
fact as to whether the plaintiff’s conduct in asking loud and
profane customers to be quiet after restaurant employees failed to
do so was an intervening act with respect to her negligence claim
based on her physical assault by those customers); Vetrone, 22
A.D.3d at 839-40 (holding that the assault upon the plaintiff when
he tried to close the restaurant door on prepaid ticketholders was
not, as a matter of law, an unforeseeable consequence of the
defendants’ conduct in “negligently overbooking the event and in
then directing the unceremonious denial of admission to this large
crowd of people who were there to attend a New Year’s Eve party
for which they had already paid”).8

Hess disputes the admissibility of evidence cited by Plaintiffs
regarding Baig’s alleged acceptance of the sum of $20.00 from
8

29

Hess also alleges that Plaintiffs have failed to show a
causal link between their injuries and an alleged breach by Hess
because Iuzzolino “testified that had he not been arrested, he
would not have brought a lawsuit.”

(Hess’ Reply Br. at 8.)

However, Iuzzolino’s admission that his arrest was the driving
force in his decision to litigate these claims does not, in and of
itself, break the chain of causation.
Finally,

Hess

argues

that

punitive

damages

are

not

warranted as Plaintiffs failed to demonstrate “‘gross, wanton or
willful’ conduct.”

(Hess’ Br. at 17.)

“[P]unitive damages are

not available for ordinary negligence.”

Munoz v. Puretz, 301

A.D.2d 382, 384, 753 N.Y.S.2d 463 (1st Dep’t 2003).

See also Rey

v. Park View Nursing Home, Inc., 262 A.D.2d 624, 627, 692 N.Y.S.2d
686 (2d Dep’t 1999) (“Punitive damages are warranted where the
conduct of the party being held liable evidences a high degree of
moral culpability or where the conduct is so flagrant as to
transcend
willful
omitted).

mere
or

carelessness

wanton

or

negligence

where
or

the

conduct

constitutes

recklessness”)

(citations

To the extent Plaintiffs seek punitive damages in

connection with their negligence claim against Hess, the Court
finds that they have failed to raise triable issues of fact as to

Prioleau for one gallon of gas. (See Pls.’ Hess Opp. Br. at 11;
Hess’ Reply Br. at 5-7.) The Court need not resolve this issue
in light of its finding that other evidence in the record
supports the denial of summary judgment on the negligence claim.
30

whether Hess’ conduct rises above mere negligence to warrant an
award of punitive damages.

Accordingly, Hess’ motion for summary

judgment on the negligence claim is DENIED as to liability and
GRANTED to the extent Plaintiffs seek punitive damages.
B.

Negligent Infliction of Emotional Distress
“A claim for negligent infliction of emotional distress

cannot be asserted if it is essentially duplicative of tort or
contract causes of action.”

C.T. v. Valley Stream Union Free Sch.

Dist., 201 F. Supp. 3d 307, 327 (E.D.N.Y. 2016) (internal quotation
marks

and

citation

omitted)

(holding

that

the

plaintiff’s

negligent infliction of emotional distress claim was duplicative
of his negligent supervision claim).

See also Virgil v. Darlak,

No. 10-CV-6479, 2013 WL 4015368, at *10 (W.D.N.Y. Aug. 6, 2013)
(dismissing the negligent infliction of emotional distress claim
where it was based on the same conduct underlying the medical
malpractice claim).)

Here, Plaintiffs’ negligent infliction of

emotional distress claim is duplicative of their negligence claim,
as both claims are based on the same underlying conduct--Baig’s
suggestion to Prioleau that he seek permission to cut the line.
(See Pls.’ Hess Opp. Br. at 13 (stating, in their discussion of
the

negligent

“Plaintiffs’

infliction
safety

was

of

emotional

unreasonably

distress

claim,

endangered

by

that
Baig’s

unilateral conduct, and the inextricable result caused Plaintiffs
to rightfully fear for their safety”).
31

Accordingly, Hess’ motion

for summary judgment with respect to the negligent infliction of
emotional distress claim is GRANTED.
CONCLUSION
For the foregoing reasons, Hess’ motion for summary
judgment (Docket Entry 49) is GRANTED IN PART and DENIED IN PART,
and the City Defendants’ Motion (Docket Entry 54) is GRANTED.
Plaintiffs’ remaining claim is against Hess for negligence.

The

Clerk of the Court is directed to TERMINATE Erik Contreras, New
York City Police Department, and the City of New York as defendants
in this action.

The Clerk of the Court is further directed to

TERMINATE Therese Iuzzolino and Elizabeth Knaust in her individual
capacity as plaintiffs in this action in light of the Court’s
dismissal of the loss of society claim.
The remaining parties are directed to file a joint
proposed pre-trial order that complies with the Individual Rules
of this Part on or before September 25, 2017, and appear for a
pre-trial conference before the undersigned on October 25, 2017 at
2:30 p.m.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
23 , 2017
Central Islip, New York

32