Kennedy v. City of Albany et al
Filing
21
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 10 Motion to Dismiss: The Court hereby ORDERS that the Defendants' motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED with regard to (1) Plaintiff's section 1983 claims against Defendant Kirwin in his official capacity (2) Plaintiff's section 1983 claims for punitive damages against the City of Albany, and (3) Plaintiff's claims for violations of due process r ights under the Fifth Amendment; and the Court further ORDERS that Defendants' motion to dismiss pursuant to rule 12(b)(6) of the Federal Rule of Civil Procedure is DENIED without prejudice with regard to Plaintiff's state law claims for assault, battery, intentional infliction of emotional distress, and false arrest; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum- Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/22/15. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TIARA KENNEDY,
Plaintiff,
vs.
1:15-cv-00491
(MAD)
CITY OF ALBANY, PAUL E. KIRWIN, City
of Albany Police Officer individually and/or in
his official capacity as agent, servant and/or
employee of the City of Albany also known as
Paul E. Kirwan, JOHN DOE 1 AND 2, whose
names are presently unknown, individually
and/or as agents, servants, and or employees
of the City of Albany,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
LAW OFFICE OF TERESI &
LITTLE, PLLC
21 Colvin Avenue
Albany, New York 12206
Attorneys for Plaintiff
WILLIAM T. LITTLE, ESQ.
REHFUSS, LIGUORI LAW FIRM
40 British American Boulevard
Latham, New York 12110
Attorneys for Defendants
STEPHEN J. REHFUSS, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 24, 2015, Tiara Kennedy ("Plaintiff") commenced this suit claiming negligence,
intentional torts, and constitutional violations. See Dkt. No. 1. Defendants move to dismiss
pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 10.
II. BACKGROUND
Plaintiff claims that, in the early morning hours of January 26, 2014, she was a guest at the
Armory Sports and Convention Center located at 195 Washington Avenue in the City of Albany,
State of New York. See Dkt. No. 1 at ¶ 12. While escorting a friend from the facility, Plaintiff
claims that she was intentionally, recklessly, and negligently "attacked, assaulted and body
slammed" by Defendant Kirwin and other unknown City of Albany police officers. See id. at ¶¶
14-16. Plaintiff states that other City of Albany police officers, identified by Plaintiff as John
Does 1 and 2, assisted Defendant Kirwin in the attack on Plaintiff and also failed to intervene into
Defendant Kirwin's actions. See id. at ¶ 19-20. According to Plaintiff, the event was "peaceful,
orderly and lawful until defendants' actions." See id. at ¶ 17.
Plaintiff filed a notice of claim, naming the City of Albany and the City of Albany Police
Department, pursuant to New York General Municipal Law ("General Municipal Law") § 50-e.1
See Dkt. No. 13. The statutory notice did not identify any individual police officers but described
the individuals as agents, servants, and /or employees of the City of Albany's Police Department.
See id. at 13. The notice of claim also states the date and general time of the incident and the
name of the facility with the address. See id. at 14. The City completed an oral examination of
Plaintiff pursuant to General Municipal Law § 50-h(1). See Dkt. No. 1 at ¶ 24.
Plaintiff commenced this action with the filing of a complaint on April 24, 2015. See Dkt.
No. 1. In the complaint, Plaintiff alleges the following causes of action: (1) use of excessive force
in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution
It does not appear to be in dispute that the City of Albany Police Department was not
properly captioned on the notice of claim. The City of Albany Police Department is an
administrative arm of the City. "[T]he Police Department cannot sue or be sued because it does
not exist separate and apart from the municipality and does not have its own legal identity."
Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y. 2008) (internal citation and
quotation marks omitted).
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("Amendments"), (2) New York common law assault, (3) New York common law battery, (4)
New York common law intentional infliction of emotional distress, (5) New York common law
negligent infliction of emotional distress, (6) false arrest in violation of the Fourth and Fourteenth
Amendments, (7) section 1983 failure to intervene, (8) section 1983 Monell claim against a
municipality, and (9) denial of substantive due process in violation of the Fifth and Fourteenth
Amendments. See id. Currently pending before the court is Defendants' motion to dismiss
pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 10.
III. DISCUSSION
A.
Legal Standard
A motion to dismiss for failure to state a claim pursuant to rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). The Supreme Court held that a plaintiff must "plead
enough facts 'to state a claim to relief that is plausible on its face.'" Li Xi v. Apple, Inc., 603 F.
Supp. 2d 464, 467 (E.D.N.Y. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Although detailed factual allegations are not required in a pleading, a plaintiff must
provide the grounds for their entitlement to relief. See Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
When considering whether a complaint has facial plausibility a court must accept as true
all well-pleaded facts in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1
(2002); see also Twombly, 550 U.S. at 570; ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 98 (2d Cir. 2007). This presumption of truth, however, does not extend to legal conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Ultimately, when the
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allegations in a complaint, however true, could not raise a claim of entitlement to relief, the
complaint must be dismissed. See Twombly, 550 U.S. at 558, 570.
B.
Analysis
1. State Law Claims
Defendants first argue that any state law claims for intentional torts against Defendant
Kirwin, i.e., assault, battery, false arrest, and intentional infliction of emotional distress, are
barred by the one-year statute of limitations pursuant to New York Civil Practice Law and Rules
("C.P.L.R.") § 215. See Dkt. No. 10-1 at 5. Therefore, Defendants argue, the City of Albany has
no respondeat superior liability for any alleged intentional tortious conduct by Defendant Kirwin
because there is no valid underlying claim. See id. at 5-6. Plaintiff submits, in opposition, that
General Municipal Law § 50-i applies and, so, Plaintiff had one year and ninety days to
commence this action. See Dkt. No. 12-3 at 5-7.
Federal courts apply state statutes of limitations to state law claims, see Vincent v. Money
Store, 915 F. Supp. 2d 553, 560-61 (S.D.N.Y. 2013) (stating that it makes no difference if the
state law claims are presented in federal court based on diversity jurisdiction or supplemental
jurisdiction), and apply state notice-of-claim statutes to state law claims as well. See Reyes v.
City of New York, 992 F. Supp. 2d 290, 300 (S.D.N.Y. 2014) (quoting Hardy v. N.Y.C. Health &
Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). In this case, the time limitation that is applicable
depends on whether Plaintiff's state law claims against Defendant Kirwin are governed by article
four of General Municipal Law.
If the General Municipal Law applies, then the time limitation of one year and ninety days
contained therein takes precedence over the C.P.L.R.'s limitation of one year. See N.Y. Gen.
Mun. Law § 50-i; Conte v. Cty. of Nassau, 596 Fed. Appx. 1, 5 (2d Cir. 2014). The Second
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Circuit has already determined that, not only does the General Municipal Law control when a
plaintiff sues a city for tortious conduct, but it also controls those claims against any employee of
a city "if the municipality is required to indemnify the defendant pursuant to the General
Municipal Law or any other statutory provision and is therefore 'the real party in interest.'" Conte,
596 Fed. Appx. at 5 (quoting Ruggiero v. Phillips, 292 A.D.2d 41 (2d Dep't 2002). General
Municipal Law § 50-j provides that a city is "liable for . . . any duly appointed police officer of
such municipality, authority or agency for any negligent act or tort, provided such police officer,
at the time of the negligent act or tort complained of, was acting in the in performance of his
duties and within the scope of his employment." See also LaGrange v. Ryan, 142 F. Supp. 2d
287, 295 (N.D.N.Y. 2001) (stating that notice of claim requirements are not limited to just
negligence claims but must also be served for "intentional tort actions against police officers").
Here, it is alleged that Defendant Kirwin was a police officer employed by the City of
Albany, who was acting in the performance of his duties and within the scope of his employment.
See Dkt. No. 1. The tortious conduct was alleged to have taken place on January 26, 2014. See
Dkt. No. 1 at ¶ 12. This action was commenced on April 24, 2015. See Dkt. No. 1. The Court
finds that the time limitations of General Municipal Law § 50-i apply to Plaintiff's claims as
alleged and, therefore, the complaint against Defendant Kirwin was timely filed within one year
and ninety days of the alleged tortious acts.2
If Plaintiff fails to prove that Defendant Kirwin was acting in the performance of his
duties and within the scope of his employment at the time of the alleged tortious conduct, then
General Municipal Law does not apply and the C.P.L.R. § 215(3) one-year statute of limitations
is applicable. See Clark v. City of Ithaca, 235 A.D.2d 746, 821 (3rd Dep't 1997) (stating that
"[o]nly where a finding is made that the police officer's acts were clearly not within the scope of
employment is the one-year Statute of Limitations of CPLR 215(3) applicable"); Rattner v.
Planning Comm'n of Pleasantville, 156 A.D.2d 521, 526 (2d Dep't 1989) (stating that the party
asserting the claims of tortious conduct bears the burden of pleading and proving compliance with
the notice of claim requirements).
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Defendants argue in their reply memorandum of law that, even if the complaint was timely
filed under General Municipal Law § 50-i, the notice of claim was defective because General
Municipal Law § 50-e requires that individual actors must be named. See Dkt. No. 13.
Defendants conclude that Plaintiff's failure to individually name Defendant Kirwin in the notice
of claim is fatal to her action, requiring dismissal. In New York, a notice of claim is a condition
precedent to filing a tort claim against a city and against police officers acting within the scope of
their employment. See N.Y. Gen. Mun. §§ 50-e, 50-j; Chamberlain v. City of White Plains, 986
F. Supp. 2d 363, 396 (S.D.N.Y. 2013); LaGrange, 142 F. Supp. 2d at 295. General Municipal
Law § 50-e requires that the notice must contain:
(1) the name and post-office address of each claimant, and of his
attorney, if any; (2) the nature of the claim; (3) the time when, the
place where and the manner in which the claim arose; and (4) the
items of damage or injuries claimed to have been sustained so far as
then practicable.
Id. The notice of claim filed by Plaintiff against the City of Albany contained all of the required
information. See Dkt. No. 13. Defendant is correct that the failure to satisfy the General
Municipal Law §50-e requirements is grounds for dismissal. See Faccio v. Eggleston, Nos. 1:10CV-783, 1:10-CV-699, 2011 WL 3666588, *15 (N.D.N.Y. Aug. 22, 2011). Therefore, the Court
must determine whether General Municipal Law § 50-e requires naming of individual officers in
the notice of claim.
Interpreting the General Municipal Law, district courts have recognized that two of the
New York State Supreme Court Appellate Divisions are split on the issue of whether General
Municipal Law requires that a notice of claim name individual officers. See Bah v. City of New
York, No. 13 Civ. 6690, 2014 WL 1760063, *10 (S.D.N.Y. May 1, 2014); Reyes v. City of New
York, 992 F. Supp. 2d 290, 201 (S.D.N.Y. 2014); compare Goodwin v. Pretorius, 105 A.D.3d 207
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(4th Dep't 2013), with Tannenbaum v. City of New York, 30 A.D.3d 357 (1st Dep't 2006). The
First Department in Tannenbaum concluded that "General Municipal Law § 50-e makes
unauthorized an action against individuals who have not been named in a notice of claim." Id. at
358. There, the court relied upon White v. Averill Park Cent. Sch. Dist., 195 Misc. 2d 409 (Sup.
Ct. Rensselaer Cty. 2003), which summarily held that individual employees must be named in the
notice of claim as a condition precedent to the commencement of an action against them. See id.
at 411.
The court in Goodwin, 105 A.D.3d 207, points out that "White is devoid of any legal
authority supporting the Justice's view that individual employees must be named in a notice of
claim as a condition precedent." Goodwin, 105 A.D.3d at 211. While acknowledging the
importance of the doctrine of stare decisis, the Fourth Department declined to follow the First
Department stating the following,
we conclude that the courts have misapplied or misunderstood the
law in creating, by judicial fiat, a requirement for notices of claim
that goes beyond those requirements set forth in the statute. If the
legislature had intended that there be a requirement that the
individual employees be named in the notices of claim, it could
easily have created such a requirement. Indeed, the absence of such
a requirement has previously been noted (see Verponi v City of New
York, 31 Misc 3d 1230[A], 2011 NY Slip Op 50908[U], *5 [2011]).
It is a well-settled rule of statutory construction that, "where as here
the statute describes the particular situations in which it is to apply,
an irrefutable inference must be drawn that what is omitted or not
included was intended to be omitted or excluded."
Id. at 215-16 (internal citations and quotation marks omitted) (quoting Patrolmen's Benevolent
Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208-09 (1976)).
"In the absence of direct New York authority, the Court must make its 'best estimate' as to
how the [New York] Court of Appeals would rule on the issue." Bah, 2014 WL 1760063, at *10
(S.D.N.Y. May 1, 2014) (quoting Francis v. IN A Life Ins. Co. of N.Y., 809 F.2d 183, 185 (2d Cir.
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1987); see also Reyes, 992 F. Supp.2d at 201. "In making that determination, [the Court] is free
to consider all the resources the highest court of the state could use, including decisions reached
in other jurisdictions." Bah, 2014 WL 1760063, at *10 (internal quotation marks omitted)
(quoting Francis, 809 F.2d at 185). This Court agrees with the well-reasoned conclusions of the
Fourth Department in Goodwin, 105 A.D.3d 207.
Additionally, this Court estimates that the New York Court of Appeals would find that
individually named officers are not required in the notice of claim. Previously analyzing General
Municipal Law § 50-e, the New York Court of Appeals held that
The test of the sufficiency of a Notice of Claim is merely whether it
includes information sufficient to enable the city to investigate. . . .
"Nothing more may be required" (Schwartz v City of New York,
[250 N.Y. 332 (1929)]). Thus, in determining compliance with the
requirements of General Municipal Law § 50-e, courts should focus
on the purpose served by a Notice of Claim: whether based on the
claimant's description municipal authorities can locate the place, fix
the time and understand the nature of the accident.
Brown v. City of New York, 95 N.Y.2d 389, 393 (2000) (internal quotation marks omitted)
(quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358 (1981)). In evaluating the notice of
claim served in this case with the purpose stated by the Court of Appeals, the Court finds that
Plaintiff's notice of claim complies with the requirements of Municipal Law § 50-e because it
provides sufficient information to locate the place, fix the time, and understand the nature of the
incident. Especially where as here, the incident culminated in the arrest of Plaintiff. See Dkt. No.
1 at ¶¶ 64-65. The Court does not estimate that the New York Court of Appeals would impose
the additional requirement of naming the individual officers where the language of the statute
does not require it.3
Plaintiff argues that the Court should not consider the issues of law argued by
Defendants in their reply memorandum of law because Defendants' did not move upon these
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With regard to Plaintiff's claim that the City of Albany is liable for Defendant Kirwin's
actions under the doctrine of respondeat superior, see Dkt. No. 1 at ¶¶ 52-57, Defendants seek to
dismiss Plaintiff's state law claims against the City of Albany for any intentional torts because
respondeat superior liability cannot attach where there is not a valid underlying claim. See Dkt.
No. 10-1 at 6. As discussed, the Court finds that the applicable statute of limitations to Plaintiff's
claims as alleged is one year and ninety days under General Municipal Law §50-i. Accordingly,
Plaintiff has stated valid claims for intentional torts against Defendant Kirwin and, vicariously,
the City of Albany.
2. Redundancy of Claims
Defendants next argue that Plaintiff's section 1983 claims against Defendant Kirwin in his
official capacity are redundant to the claims against Defendant City of Albany and, therefore,
should be dismissed. See Dkt. No. 10-1 at 6-7. A claim against officers in their official capacity
is essentially a claim against the city. See Odom v. Matteo, 772 F. Supp. 2d 377, 392 (citing
Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); Wallikas v. Harder, 67 F. Supp. 2d 82,
83-84 (N.D.N.Y. 1999). Therefore, when a section 1983 claim is brought against both a
municipal entity and an officer in his official capacity, "the official capacity claim should be
dismissed as duplicative or redundant." Odom, 772 F. Supp. 2d at 392; see also Wallikas, 67 F.
Supp. 2d at 84. In the present case, Plaintiff has alleged section 1983 claims against both the City
grounds. See Dkt. No. 15. The Court acknowledges that Defendants did not move to dismiss
based upon a defective notice of claim but raises these grounds for the first time in their reply. As
the Court is not dismissing on these grounds, no notice or additional briefing is required from
Plaintiff. To the extent that whether a notice of claim was properly served is an issue of subject
matter jurisdiction, see Privat Air, S.A. v. Port Auth., No. 05-CV-2213, 2007 WL 2089285, *4
(E.D.N.Y. Jul. 19, 2007) (finding that the failure to comply with the notice of claim requirements
against a state agency deprived the court of subject mater jurisdiction); Kyne v. Carl Beiber Bus
Servs., 147 F. Supp. 2d 215, 218-19 (S.D.N.Y. 2001), the issue has been resolved here.
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of Albany and Defendant Kirwin for (1) use of excessive force in violation of the Fourth, Fifth,
and Fourteenth Amendments, (2) false arrest in violation of the Fourth and Fourteenth
Amendments, and (3) denial of substantive due process in violation of the Fifth and Fourteenth
Amendments. See id. To the extent that Plaintiff brings any of these section 1983 claims against
Defendant Kirwin in his official capacity, the Court finds that they are duplicative and, therefore,
dismissed.
3. Punitive Damages
The Court agrees with Defendants that Plaintiff cannot maintain a claim for punitive
damages against the City of Albany in a section 1983 action, see Dkt. No. 10-1 at 7, because
municipalities are immune from punitive damages. See City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 (1981). Plaintiff clarifies in her opposition papers that she is not seeking
punitive damages against the City of Albany, but she seeks punitive damages against Defendants
Kirwin, and John Doe 1 and 2. See Dkt. No. 12-3 at 8. To the extent that Plaintiff's complaint
states claims for punitive damages against the City of Albany, those claims are dismissed.
4. Due Process
Defendants contend that Plaintiff's causes of action under the Fifth Amendment must be
dismissed because the "Fifth Amendment applies exclusively to the federal government and
regulates due process violations of federal actors only." Dkt. No. 10-1 at 7-8. The Court agrees
with Defendants. "The Due Process Clause of the Fifth Amendment prohibits the United States,
as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any
person of property without 'due process of law.'" Dusenbery v. United States, 534 U.S. 161, 167
(2002) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
Defendants are not alleged to be federal actors, and, accordingly, Plaintiff's claims for Fifth
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Amendment due process violations are dismissed. See Jendrzejczak v. Williams, No. 6:13-CV1239, 2014 WL 2533041, *12 (N.D.N.Y. June 5, 2014) (accepting and adopting Magistrate Judge
Dancks' Report-Recommendation). Plaintiff stipulates to the dismissal of her Fifth Amendment
due process claims. See Dkt. No. 12-3 at 8-9.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Defendants' motion to dismiss pursuant to rule 12(b)(6) of the Federal
Rules of Civil Procedure is GRANTED with regard to (1) Plaintiff's section 1983 claims against
Defendant Kirwin in his official capacity (2) Plaintiff's section 1983 claims for punitive damages
against the City of Albany, and (3) Plaintiff's claims for violations of due process rights under the
Fifth Amendment; and the Court further
ORDERS that Defendants' motion to dismiss pursuant to rule 12(b)(6) of the Federal Rule
of Civil Procedure is DENIED without prejudice with regard to Plaintiff's state law claims for
assault, battery, intentional infliction of emotional distress, and false arrest; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 22, 2015
Albany, New York
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