Mosca v. The City of New York et al

Filing 109

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth above, Colavito's objections are sustained; plaintiff's objections are overruled; so much of the Report as recommends that the City be dismissed as a cross-defendant in t his litigation and finds that "the failure of Plaintiff's Section 1983 cause of action [against the City] would divest this Court of subject matter jurisdiction," (Report at 20, n.9), is rejected, and the Report is otherwise accepted in its entirety. For the reasons set forth in the Report, the City's motion to dismiss the crossclaims asserted against it by Tapped in its answer to the first amended complaint, (DE 70 ), is denied as moot; the City's motions to dismiss p laintiff's claims against it and the crossclaims asserted against it in Tapped's answer to the SAC, (DE 92 and 99 , respectively), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure are granted; and plaintiff's claims and Tapped's crossclaims against the City are dismissed in their entirety with prejudice. In light of this determination, the stay of discovery granted pursuant to this Court's order dated 6/25/2018 is vacated; all discovery shall be compl eted by no later than 8/26/2019; and the pretrial conference scheduled to be held before the undersigned on 5/1/2019 is adjourned to 9/16/2019 at 11:15Am in Courtroom 1010 at the Central Islip Courthouse. SO Ordered by Judge Sandra J. Feuerstein on 2/25/2019. (Tirado, Chelsea)

FI LED
IN CLERK'S OFFICE
U.S. DISTRICT COUP.: E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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---------------------------------------------X

LONG ISLAND OFFICE

VINCENT MOSCA,

FEB 25 2:·J

Plaintiff,

ORDER
-against-

17-CV-4327 (SJF)(SIL)

CITY OF NEW YORK, FRANCESCO
COLAVITO, TAPPED 1010 INC.,
MXL LLC and IAN M. WALSH,
Defendants.

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FEUERSTEIN, District Judge:

Pending before the Court are: (i) the objections of plaintiff Vincent Mosca ("plaintiff') to
so much of the Report and Recommendation of the Honorable Steven I. Locke, United States
Magistrate Judge, dated December 26, 2018 ("the Report") as recommends that the motion of
defendant City of New York (the "City") seeking to dismiss plaintiff's claims against it in the
second amended complaint ("SAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure be granted, and that plaintiffs claims against the City be dismissed in their entirety
with prejudice; and (ii) the objections of defendant/cross-claimant Francesco Colavito
("Colavito") to so much of the Report as recommends that the City be dismissed "as a
Defendant/Cross-Defendant in this litigation." (Report at 24). For the reasons set forth below,
Colavito's objections are sustained; plaintiffs objections are overruled; so much of the Report as
recommends that the City be dismissed as a cross-defendant in this litigation and finds that "the
failure of Plaintiffs Section 1983 cause of action [against the City] would divest this Court of
subject matter jurisdiction," (id. at 20, n. 9), is rejected; and the Report is otherwise accepted in
its entirety.

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I.

Discussion
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual
findings or legal conclusions of the magistrate judge as to which no proper objections are
interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To
accept the report and recommendation of a magistrate judge to which no specific, timely
objection has been made, the district judge need only be satisfied that there is no clear error
apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great
Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which
no timely objection has been interposed to determine whether the magistrate judge committed
“plain error.”)
Moreover, Aa district court generally will not consider new arguments raised for the first
time in objections to a magistrate judge=s report and recommendation that could have been raised
before the magistrate but were not.@ Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 51 (E.D.N.Y.
2015) (citing cases); see also Santiago v. City of New York, No. 15-cv-517, 2016 WL 5395837,
at *1 (E.D.N.Y. Sept. 27, 2016), aff=d, 697 F. App=x 36 (2d Cir. Sept. 6, 2017) (“[C]ourts
ordinarily refuse to consider arguments, case law and/or evidentiary material which could have
been, but was not, presented to the magistrate judge in the first instance.” (quotations and citation
omitted)); Michalow v. East Coast Restoration & Consulting Corp., No. 09-cv-5475, 2018 WL
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1559762, at * 6 (E.D.N.Y. Mar. 31, 2018) (“[F]or the district judge to review new evidence or
arguments would reduce the magistrate’s work to something akin to a meaningless dress
rehearsal.” (quotations and citation omitted)) 1.
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge=s findings or recommendations. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b).

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The only statement regarding plaintiff’s purported state law respondeat superior claims in its
opposition to the City’s motion to dismiss the SAC is: “Aside from any claims based on
respondeat superior, the City was negligent in failing to properly screen, train, retrain, supervise
and discipline its police officers generally, and Colavito specifically.” (Plaintiff’s Memorandum
of Law in Opposition to the City’s Motion to Dismiss the SAC at 20). Although the Court may
have discretion to consider arguments not previously or properly presented to the magistrate
judge in connection with a report and recommendation, see Levy v. Young Adult Inst., Inc., 103
F. Supp. 3d 426, 433 (S.D.N.Y. 2015), the Court declines to do so here, particularly since, inter
alia, (i) plaintiff proffers no explanation for his failure to raise his arguments regarding his state
law respondeat superior claims before Magistrate Judge Locke and entirely ignores the Court’s
prior finding that plaintiff abandoned his state law claims, including his respondeat superior
claim, by failing to address the City’s arguments seeking dismissal of those claims in its motion
to dismiss the first amended complaint, (see Order dated May 18, 2018 at 2, n. 1; Report at 14);
(ii) he does not identify any intervening case or statute that has changed the state of the law with
respect to those claims; (iii) no manifest injustice will result; and (iv) issues of efficiency and
fairness militate against consideration of the new arguments regarding plaintiff=s state law
claims, which could have, and should have, been raised in the first instance in his opposition to
the City’s motion to dismiss the SAC for consideration by the magistrate judge. See generally
Levy, 103 F. Supp. 3d at 433-34; Michalow, 2018 WL 1559762, at * 6 (“Although a district
judge may entertain new evidence and new arguments when reviewing a report and
recommendation, doing so is disfavored absent a most compelling reason for the failure to
present such evidence or arguments in the first instance.” (quotations and citation omitted)). In
any event, plaintiff=s objections with respect to his state law respondeat superior claims, (see Plf.
Obj. at 11-14), are without merit. (See Report and Recommendation dated April 24, 2018 at 1416).
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B.

Objections
1.

Plaintiff’s Objections

Plaintiff contends, inter alia, that Magistrate Judge Locke erred in finding that the SAC:
(i) “failed to set forth facts tending to support, at least circumstantially, an inference that [] a
municipal policy or custom exists, . . . since the SAC contains allegations that, (a) for several
years prior to the incident giving rise to the within action, NYPD would engage in an existing,
systematic practice of overturning Departmental decisions deeming officers ‘unsuitable,’ and
substituting said decisions with ‘glowing endorsements,’ (SAC at ¶¶ 8-11, 35-37, 48-51, 72-77);
and that (b) throughout these purportedly prior similar incidents, NYPD supervisors and
investigators admitted that ‘the fix was in,’ meaning that NYPD would manipulate investigations
‘in an unfair system in which favors were granted to help certain disqualified – and possibly
dangerous – candidates become NYPD cops’ by ‘pushing them through the system,’ (SAC at ¶¶
8-11), thereby maintaining a negligent custom and practice of screening, hiring, retaining and
supervising its police officers wherein senior NYPD officials would systematically either
actively overturn or negligently overlook off-duty improprieties by NYPD officers which
tendered them unsuitable to be employed as policy [sic] officers (SAC at ¶ 6),” (Plf. Obj. at 2
[first brackets in original] [quotations and citation omitted]; see also id. at 5-6); and (ii) “failed to
demonstrate a manifest failure to train, supervise or discipline its employees, . . . despite the
inclusion of facts in the SAC with respect to: (a) a prior well-documented NYPD custom and
practice wherein NYPD acted with ‘deliberate indifference’ by virtue of an existing ‘unfair
system in which favors are granted to help certain disqualified – and possibly dangerous –
candidates become NYPD cops,’ (SAC at ¶ 11); (b) similar, specific prior incidents of NYPD
overlooking or actively overturning officer unsuitability determinations despite such officers’

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involvement in precisely the same conduct as defendant Colavito in this case – ‘more than 10’
physical altercations, and improperly flashing his badge[,] (SAC at ¶ 9); and (c) the fact that
these prior events occurred as far back as 2012, three years before the incident at issue in this
action.” (Plf. Obj. at 2-3 [emphasis in original] [quotations, brackets and citation omitted]; see
also Id. at 7-8). Plaintiff further contends, inter alia, that Magistrate Judge Locke “incorrectly
limited [his] discussion with respect to the nature of the prior incidents to a dissimilar ‘parking
ticket’ event . . . and failed to consider prior incidents, occurring as far back as 2012, of officers
improperly flashing their badge and of instigating physical alterations.” (Plf. Obj. at 3, 8).
In addition, plaintiff contends that Magistrate Judge Locke erred in recommending: (i)
that plaintiff’s state common law negligence and negligent hiring/retention claim be dismissed
because he “fail[ed] to consider . . . evidence that NYPD knew or should have known of its
employees’ propensity for the conduct which caused the injury prior to this incident occurring, . .
. and [r]equir[ed] the inclusion of evidence that Colavito himself engaged in similar, specific
prior incidents, while simultaneously depriving Plaintiff of documentation in NYPD’s exclusive
possession and control with respect to Colavito’s Candidate Assessment file or Personnel Index,”
(Plf. Obj. at 3, 8-9) (quotations, alterations and emphasis omitted); and (ii) that plaintiff’s state
common law negligence claim against the City be dismissed “as duplicative of [his] assault and
battery claims against Colavito and Walsh, [because] the conduct complained of as against [the
City] is alleged to be based entirely, not on Colavito [sic] and Walsh’s assault and battery upon
Plaintiff, but rather on [the City’s] own, independent negligence in systematically overturning or
overlooking off-duty improprieties by NYPD officers despite being on actual notice of multiple
prior similar incidents.” (Id. at 3 [emphasis omitted]; see also Id. at 11-12). According to
plaintiff, the SAC states a plausible claim for negligent hiring/retention, insofar as it specifically

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alleges that the City (i) knew or should have known Colavito “was unfit for duty when he caused
the false arrest, false imprisonment, intentional, unlawful and substantial restraint, detention, and
assault and battery of the Plaintiff[,] (SAC, at paragraphs 3-4), . . . [and] had a history of, and a
psychological tendency to engage in undue acts of aggressive/violent/bizarre
behavior/bullying/alcoholism/mental disturbance, that he closely associated with persons who
engaged in such acts, and that he violated numerous NYPD rules and guidelines ([SAC], at
paragraphs 4, 36, 104, 120),” (Plf. Obj. at 10); (ii) “failed to retrain [Colavito], suspend him, or
terminate his employment despite his continuation of such acts ([SAC] at paragraphs 37, 69, 121,
123),” (Plf. Obj. at 11); and (iii) “engaged in a custom and practice of failing to recognize, or of
overruling adverse determinations, and otherwise failed to properly investigate, screen, evaluate,
test, train, supervise and examine Colavito both prior and after hiring him ([SAC] at paragraph
101).” (Plf. Obj. at 11).
Upon de novo review of the Report, all motion papers and the pleadings, and
consideration of plaintiff’s objections to the Report, and the City’s response thereto, the
objections are overruled and so much of the Report as recommends dismissal of plaintiff’s
claims against the City in the SAC is accepted in its entirety. A municipality, or policymaker
thereof, “does not exhibit deliberate indifference by failing to train employees for rare or
unforeseen events.” Wray v. City of New York, 490 F.3d 189, 196 (2d Cir. 2007) (quotations,
alterations and citation omitted). A few instances of purported misconduct by a small number of
city employees over a period of several years falls “far short of showing a policy, custom or
usage of officers to abuse the rights of [those with whom they come into contact], and far short
of showing abusive conduct among officers so persistent that it must have been known to

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supervisory authorities.” Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir. 2012); see, e.g.
Greene v. City of New York, 742 F. App’x 532, 537 (2d Cir. July 19, 2018) (summary order).
In addition, the prior instances of misconduct must be sufficiently similar to the
constitutional deprivations alleged by the plaintiff as to have put the City on notice that specific
training was necessary, or that there existed “a specific deficiency in the city’s training
program.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004); see, e.g.
Simms v. City of New York, 480 F. App’x 627, 631, n. 4 (2d Cir. May 16, 2012) (summary
order). Moreover, “contemporaneous or subsequent conduct cannot establish a pattern of
violations that would provide notice to the city and the opportunity to conform to constitutional
dictates[.]” Connick v. Thompson, 563 U.S. 51, 63, n. 7, 131 S. Ct. 1350, 179 L. Ed. 2d 417
(2011) (quotations, alterations and citation omitted); see also Greene, 742 F. App’x at 536-37
(“A plaintiff cannot point to contemporaneous or subsequent violations to establish a pattern of
violations that [] provided notice to the city that it needed [] to conform its training or
supervising program to constitutional dictates.” (quotations, alterations and citation omitted)).
Accordingly, Magistrate Judge Locke correctly found, inter alia, that the other incidents alleged
by plaintiff in the SAC are insufficient to support a plausible claim for municipal liability under
Section 1983.
Since, inter alia, plaintiff has not alleged any facts to support his conclusory contentions
that a municipal policy or custom existed, much less that any such policy or custom caused the
purported deprivation of his constitutional rights, the SAC fails to state a claim for municipal
liability under Section 1983. See Jones, 691 F.3d at 80; e.g. Uwadiegwu v. Dep’t of Soc. Servs. of
County of Suffolk, 639 F. App’x 13, 16 (2d Cir. Jan. 14, 2016) (summary order); McCray v.

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Patrolman N.A. Caparco, --- F. App’x ---, 2019 WL 409430, at * 3 (2d Cir. Jan 31. 2019)
(summary order); Simms, 480 F. App’x at 630-31.
Magistrate Judge Locke also correctly found, inter alia, that the SAC fails to state
plausible state law claims against the City for negligence, negligent and intentional infliction of
emotional distress and negligent hiring and retention. Accordingly, for the reasons set forth in the
Report, the City’s motion to dismiss plaintiff’s claims against it in the SAC pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure is granted and plaintiff’s claims against the City
are dismissed in their entirety for failure to state a plausible claim for relief.

2.

Colavito’s Objections

Colavito objects to the Report “to the extent it recommends dismissal of [his] cross
claims against [the City].” (Colavito’s Objections to Report [“Colavito Obj.”] at 1). Colavito
contends, inter alia, that Magistrate Judge Locke erred in purportedly recommending that his
crossclaims “be dismissed sua sponte, as [he] could not have reasonably anticipated his cross
claims would be subject to dismissal when the City filed an answer . . . and the issue of [his]
cross claims was never briefed or discussed relative to the City’s motion against the plaintiff . . .
or its motion against . . . Tapped 1010 Inc. [‘Tapped’].” (Id.). According to Colavito, although
both he and Tapped “asserted claims for contribution and indemnity, the [Report’s] rationale for
dismissing Tapped’s claims, those of a bar on Long Island with no relationship to the City, do
not apply to Colavito, who was employed as a police officer by the City at the time of the
incident alleged.” (Id. at 3).

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In response to Colavito’s objections, the City contends, inter alia, that although it “does
not believe that Magistrate Judge Locke intended to rule on the merits of . . . Colavito’s crossclaims [sic] against the City since the City did not move against th[o]se cross-claims [sic]
pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, should this Court adopt . . . [the
Report] as to the dismissal of plaintiff’s federal claims against the City with prejudice, as
Magistrate Judge Locke correctly noted, such would ‘divest this Court of subject matter
jurisdiction over the litigation under 28 U.S.C. §§ 1331 and 1367.’” (The City’s Response to
Colavito’s Objections at 1) (quoting Report at 20, n. 9). Accordingly, the City contends, inter
alia, that “the Court should decline supplemental jurisdiction and dismiss the remainder of the
action for lack of subject matter jurisdiction if . . . [the Report] as to the dismissal of plaintiff’s
federal claims is adopted.” (Id.).
The Report, inter alia, recommends granting both the City’s motion to dismiss plaintiff’s
claims against it in the SAC and the City’s separate motion seeking to dismiss the crossclaims
asserted against it by Tapped pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
in their entirety, and also recommends, in relevant part, that the “cross claims against the City be
dismissed with prejudice[,]” (Report at 1), and that the City be dismissed “as a Defendant/CrossDefendant in this litigation.” (Id. at 24). To the extent that the Report can be construed as
recommending that the crossclaims asserted against the City by Colavito in his answer to the
SAC be dismissed sua sponte, such recommendation is rejected. See generally Catzin v. Thank
You & Good Luck Corp., 899 F.3d 77, 82 (2d Cir. 2018) (“An opportunity to be heard prior to
dismissing a case is not a mere formality and the reasons are straightforward: ‘No principle is
more fundamental to our system of judicial administration than that a person is entitled to notice

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before adverse judicial action is taken against him.’” (quoting Lugo v. Keane, 15 F.3d 29, 30 (2d
Cir. 1994))).
Moreover, although plaintiff’s Section 1983 claims against the City are dismissed in their
entirety for failure to state a plausible claim for relief, the SAC can arguably be read to assert
Section 1983 claims against Colavito, individually, for false arrest, false detention and assault,
(see SAC ¶¶ 80-84, 86-94), and the Report even finds that plaintiff “has plausibly alleged that
Colavito acted under the color of state law.” (Report at 10). Since this Court clearly retains
original subject matter jurisdiction over those federal claims pursuant to 28 U.S.C. § 1331, it has
supplemental jurisdiction over the remaining state law claims and crossclaims in this action
pursuant to 28 U.S.C. § 1367. Accordingly, so much of the Report as finds that “the failure of
Plaintiff’s Section 1983 cause of action [against the City] would divest this Court of subject
matter jurisdiction,” (Report at 20, n. 9), is rejected.

C.

Findings and Conclusion to which No Objections Made

No party assigns any error to so much of the Report as, inter alia, (i) finds that plaintiff
“plausibly alleged that Colavito acted under the color of state law,” (Report at 10); or (ii)
recommends (A) that the City’s motion to dismiss the crossclaims asserted against it by Tapped
in its answer to the first amended complaint, (DE 70), “be denied as moot because it relates to an
inoperative earlier pleading[,]” (Report at 1, n. 1), (B) that the City’s motion to dismiss the
crossclaims asserted against it by Tapped in its answer to the SAC be granted and Tapped’s
crossclaims against the City be dismissed in their entirety with prejudice, and (C) that “leave to
amend be denied sua sponte.” (Id. at 21). There being no clear error on the face of the Report
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with respect thereto, those branches of the Report are accepted in their entirety. Accordingly, for
the reasons set forth in the Report, the City’s motion to dismiss the crossclaims asserted against
it by Tapped in its answer to the first amended complaint, (DE 70), is denied as moot; the City’s
motion to dismiss the crossclaims asserted against it by Tapped in its answer to the SAC is
granted; Tapped’s crossclaims against the City are dismissed in their entirety with prejudice; and
plaintiff’s claims against the City are dismissed in their entirety with prejudice.

II.

Conclusion
For the reasons set forth above, Colavito’s objections are sustained; plaintiff’s objections

are overruled; so much of the Report as recommends that the City be dismissed as a crossdefendant in this litigation and finds that “the failure of Plaintiff’s Section 1983 cause of action
[against the City] would divest this Court of subject matter jurisdiction,” (Report at 20, n. 9), is
rejected, and the Report is otherwise accepted in its entirety. For the reasons set forth in the
Report, the City’s motion to dismiss the crossclaims asserted against it by Tapped in its answer
to the first amended complaint, (DE 70), is denied as moot; the City’s motions to dismiss
plaintiff’s claims against it and the crossclaims asserted against it in Tapped’s answer to the
SAC, (DE 92 and 99, respectively), pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure are granted; and plaintiff’s claims and Tapped’s crossclaims against the City are
dismissed in their entirety with prejudice. In light of this determination, the stay of discovery
granted pursuant to this Court’s order dated June 25, 2018 is vacated; all discovery shall be
completed by no later than August 26, 2019; and the pretrial conference scheduled to be held

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before the undersigned on May 1, 2019 is adjourned to September 16, 2019 at 11:15 a.m. in
Courtroom 1010 at the Central Islip Courthouse.
SO ORDERED.
___________/s/________________
SANDRA J. FEUERSTEIN
United States District Judge
Dated: February 25, 2019
Central Islip, New York

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