Schoolcraft v. The City Of New York et al

Filing 298

DECLARATION of Suzanna P. Mettham in Support re: 297 MOTION for Summary Judgment .. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Thomas Hanley(Tax Id. 879761, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Robert W. O'Hare(Tax Id. 916960, Individually), Robert W. O'Hare(Tax Id. 916960, in his Official Capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually), Richard Wall, Sondra Wilson(Shield No. 5172, in her Official Capacity), Sondra Wilson(Shield No. 5172, Individually). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR)(Shaffer, Ryan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------------------X
ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official Capacity,
ASSISTANT CHIEF PATROL BOROUGH BROOKLYN NORTH
GERALD NELSON, Tax Id. 912370, Individually and in his Official
Capacity, DEPUTY INSPECTOR STEVEN MAURIELLO, Tax Id.
895117, Individually and in his Official Capacity, CAPTAIN
THEORDORE LAUTERBORN, Tax Id. 897840, Individually and in
his Official Capacity, LIEUTENANT JOSEPH GOUGH, Tax Id.
919124, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in his
Official Capacity, SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Official Capacity, LIEUTENANT
CHRISTOPHER BROSCHART, Tax Id. 915354, Individually and in
his Official Capacity, LT. TIMOTHY CAUGHEY, Tax Id. No.
885374, Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, Individually and in her Official
Capacity, SERGEANT RICHARD WALL, Shield No. 3099,
Individually and in his Official Capacity, SERGEANT ROBERT W.
O’HARE, Tax Id. 916960, Individually and in his Official Capacity,
SERGEANT SONDRA WILSON, Shield No. 5172, Individually and
in her Official Capacity, LIEUTENANT THOMAS HANLEY, Tax
Id. 879761, Individually and in his Official Capacity, CAPTAIN
TIMOTHY TRAINOR Tax Id. 899922, Individually and in his
Official Capacity, and P.O.’s “JOHN DOE” #1-50, Individually and
in their Official Capacity (the name John Doe being fictitious, as the
true names are presently unknown) (collectively referred to as “City
Defendants”), FDNY LIEUTENANT ELISE HANLON, individually
and in her official capacity as a lieutenant with the New York City
Fire Department, JAMAICA HOSPITAL MEDICAL CENTER, DR.
ISAK ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in his Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE’S “JOHN DOE” # 1-50, Individually and in their
Official Capacity (the name John Doe being fictitious, as the true
names are presently unknown),
Defendants.
----------------------------------------------------------------------------------X

DECLARATION OF
SUZANNA PUBLICKER
METTHAM

10-CV-6005 (RWS)

SUZANNA PUBLICKER METTHAM, declares pursuant to 28 U.S.C. § 1746,
under penalty of perjury, that the following is true and correct:

1.

I am a Senior Counsel in the office of Zachary W. Carter, Corporation

Counsel of the City of New York, attorney for defendants the City of New York, Deputy Chief
Michael Marino, Assistant Chief Gerald Nelson, Captain Theodore Lauterborn, Lieutenant
William Gough, Sergeant Frederick Sawyer, Sergeant Kurt Duncan, Lieutenant Christopher
Broschart, Lieutenant Timothy Caughey, Lieutenant Shantel James, Sergeant Richard Wall,
Sergeant Robert W. O’Hare, Sergeant Sondra Wilson, Lieutenant Thomas Hanley, Captain
Timothy Trainor, and FDNY Lieutenant Elise Hanlon (collectively “City Defendants”). As such,
I am familiar with the facts stated below and submit this declaration to place on the record the
relevant documents in support of said City Defendants’ motion for partial summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
2. Attached as Exhibit “A” is a true and accurate copy of plaintiff Adrian
Schoolcraft’s Second Amended Complaint in the instant action, dated September 25, 2012.
(Docket Entry No. 103.) Plaintiff filed the instant action originally on August 10, 2010. (Docket
Entry No. 1.) Plaintiff previously filed his First Amended Complaint on September 13, 2010.
(Docket Entry No. 21.) Plaintiff’s Second Amended Complaint alleges claims against City
Defendants for deprivation of rights under 42 U.S.C. § 1983; violation of his First Amendment
rights under 42 U.S.C. § 1983; false arrest under 42 U.S.C. § 1983; malicious abuse of process
under 42 U.S.C. § 1983; excessive force under 42 U.S.C. § 1983; failure to intercede under 42
U.S.C. § 1983; unlawful search and seizure under 42 U.S.C. § 1983; involuntary confinement
under 42 U.S.C. § 1983; conspiracy to violate plaintiff’s rights under 42 U.S.C. § 1983;
municipal liability under 42 U.S.C. § 1983; assault under New York State Law; battery under

New York State Law; false arrest under New York State Law; false imprisonment under New
York State Law; intentional infliction of emotional distress under New York State Law; and
negligent hiring, supervision, and retention under New York State Law.
3. Attached as Exhibit “B” is a true and accurate copy of relevant portions of
plaintiff Adrian Schoolcraft’s first deposition, taken on October 11, 2012 in which he testifies to
various facts and circumstances that he believes support the allegations in his complaint, and
during which he was unable to point to any evidence supporting certain claims.
4. Attached as Exhibit “C” is a true and accurate copy of relevant portions of
plaintiff’s medical records from Dr. Hertzel K. Sure, M.D., showing that plaintiff sought
treatment on April 6, 2009 and was excused from work for eight days.
5. Attached as Exhibit “D” is a true and accurate copy of relevant portions of
plaintiff’s New York City Police Department (hereinafter “NYPD”) psychological file
summarizing plaintiff’s contacts with Dr. Catherine Lamstein-Reiss from April 13, 2009 through
January 19, 2010.
6. Attached as Exhibit “E” is a true and accurate copy of relevant portions of Dr.
Catherine Lamstein-Reiss’ deposition, taken on January 30, 2014 in which she testifies about her
interaction with plaintiff and about how she informed NYPD Captain Theodore Lauterborn that
he needed to locate plaintiff on October 31, 2009 to ensure his wellbeing.
7. Attached as Exhibit “F” is a true and accurate copy of relevant portions of
Captain Theodore Lauterborn’s deposition, taken on November 7, 2013, in which he testifies
about his knowledge of plaintiff’s whereabouts and physical and mental condition on October
31, 2009.

8. Attached as Exhibit “G” is a true and accurate copy of relevant portions of
Deputy Chief Michael Marino’s deposition, taken on October 8, 2013, in which he testifies about
his knowledge of plaintiff’s whereabouts and physical and mental condition on October 31,
2009.
9. Attached as Exhibit “H” is a true and accurate copy of relevant portions of
Lieutenant Christopher Broschart’s deposition, taken on June 18, 2014, in which he testifies
about his knowledge of plaintiff’s whereabouts and physical and mental condition on October
31, 2009.
10. Attached as Exhibit “I” is a true and accurate copy of relevant portions of
Deputy Inspector Steven Mauriello’s first deposition, taken on December 20, 2013, in which he
testifies about his knowledge of plaintiff’s placement on restricted duty.
11. Attached as Exhibit “J” is a true and accurate copy of relevant portions of
Emergency Medical Technician Sal Sangeniti’s deposition, taken on May 15, 2014, in which he
testifies about his assessment of plaintiff’s medical condition as an “emergency” on October 31,
2009.
12. Attached as Exhibit “K” is a true and accurate copy of plaintiff’s Jamaica
Hospital Medical Center (“JHMC”) patient care report (“PCR”) dated October 31, 2009,
showing plaintiff’s medical condition and complained of symptoms on October 31, 2009.
13. Attached as Exhibit “L” is a true and accurate copy of relevant portions of
plaintiff’s second deposition, taken on September 26, 2013 in which he testifies to various facts
and circumstances that he believes support the allegations in his complaint, and during which he
was unable to point to any evidence supporting certain claims.

14. Attached as Exhibit “M” is a true and accurate copy of a February 1, 2010
New York Daily News Article, written by Rocco Prascandola entitled Brooklyn’s 81st Precinct
Probed by NYPD for fudging stats; felonies allegedly marked as misdemeanors, which reflects
the first time plaintiff’s allegations became public.
15. Attached as Exhibit “N” is a true and accurate copy of relevant portions of
Lieutenant William Gough’s deposition, taken on April 11, 2014, in which he testifies about the
motivation for the NYPD’s visitation to plaintiff’s Johnstown, New York residence.
16. Attached as Exhibit “O” is a true and accurate copy of relevant portions of
plaintiff’s third deposition, taken on September 27, 2013 in which he testifies to various facts
and circumstances that he believes support the allegations in his complaint, and during which he
was unable to point to any evidence supporting certain claims.
17. Attached as Exhibit “P” is a true and accurate copy of plaintiff’s
Memorandum of Law to Amend the Complaint a Third Time, dated December 4, 2014 in which
plaintiff expresses his intention to remove defendants Wilson, Wall, O’Hare, and Hanley as
defendants and to withdraw his first claim for relief alleging a deprivation of rights under 42
U.S.C. § 1983.
18. Attached as Exhibit “Q” is a true and accurate copy of the Civil Court Docket
Sheet in this action, which reflects that plaintiff has not filed a stipulation of withdrawal with the
Court agreeing to dismiss defendants Wilson, Wall, O’Hare, and Hanley as defendants or
withdrawing his first claim for relief alleging a deprivation of rights under 42 U.S.C. § 1983.
19. Attached as Exhibit “R” is a true and accurate copy of relevant portions of
Sergeant Shantel James’ deposition, taken on May 12, 2014, in which she testifies that she has

never discussed plaintiff with Lieutenant Timothy Caughey and does not know Lieutenant
Timothy Caughey.
20. Attached as Exhibit “S” is a true and accurate copy of relevant portions of
Joseph Ferrara’s deposition, taken on June 5, 2014 in which he alleges that he was retaliated
against for whistleblowing.
21. Attached as Exhibit “T” is a true and accurate copy of relevant portions of
Police Officer Adhyl Polanco’s deposition, taken on March 29, 2010, in which he alleges that he
was the victim of retaliation.
22. Attached as Exhibit “U” is a true and accurate copy of relevant portions of
John Eterno’s deposition, taken on October 17, 2014, in which he testifies that the New York
City Police Department is a model police department and that its policies and practices are
within the standards of police departments throughout the United States.
23. Attached as Exhibit “V” is a true and accurate copy of a letter titled
“Suspension from Duty and Notification to Appear while on Suspension” dated December 9,
2010, from Captain Timothy Trainor to plaintiff, in which plaintiff was informed that he was
suspended from duty effective December 7, 2009, and was directed to appear on in person at
either the 50th Precinct Station House or the 104th Precinct Stationhouse at 9:00a.m. every
Monday, Wednesday, and Friday, pursuant to Patrol Guide Procedure 206-08.
24. Attached as Exhibit “W” is a true and accurate copy of a letter titled
“Notification to Appear for Restoration to Duty” dated January 19, 2010, from Captain Timothy
Trainor to plaintiff, in which plaintiff was directed to appear on January 21, 2010 at the NYPD’s
Department Advocate’s Office for restoration to “active duty.”

25. Attached as Exhibit “X” is a true and accurate copy of a letter titled
“Notification to Appear for Restoration to Duty” dated January 11, 2010, from Captain Timothy
Trainor to plaintiff, in which plaintiff was directed to appear on January 13, 2010 at the NYPD’s
Department Advocate’s Office for restoration to “active duty.”
26. Attached as Exhibit “Y” is a true and accurate copy an email from Captain
Timothy Trainor to Louis Luciani, Liju Thotam, and Mark Berger dated January 12, 2010, in
which defendant Trainor indicated that supervisors within the Brooklyn North Investigation Unit
that same day unsuccessfully attempted to serve plaintiff with a restoration to “active duty”.
27. Attached as Exhibit “Z” is a true and accurate copy an email from Captain
Timothy Trainor to Louis Luciani, Liju Thotam, and Mark Berger dated January 18, 2010, in
which Captain Timothy Trainor indicated that on January 17, 2010, staff within the Brooklyn
North Investigation Unit unsuccessfully attempted to serve plaintiff for a fourth time with a
restoration to “active duty”.
28. Attached as Exhibit “AA” is a true and accurate copy of a letter titled
“Notification to Appear for Restoration to Duty” dated January 20, 2010, from Captain Timothy
Trainor to plaintiff, in which plaintiff was directed to appear on January 21, 2010 at the NYPD’s
Department Advocate’s Office for restoration to “active duty.”
29. Attached as Exhibit “BB” is a true and accurate copy an email from Captain
Timothy Trainor to Louis Luciani, Liju Thotam, and Mark Berger dated January 20, 2010, in
which Captain Timothy Trainor indicated that supervisors within the Brooklyn North
Investigation Unit unsuccessfully attempted to serve plaintiff for a fifth time with a restoration to
“active duty”.

30. Attached as Exhibit “CC” is a true and accurate copy of a letter titled
“Notification to Appear for Restoration to Duty” dated January 31, 2010, from Captain Timothy
Trainor to plaintiff, in which plaintiff was directed to appear on February 1, 2010 at the NYPD’s
Department Advocate’s Office for restoration to “active duty.”
31. Attached as Exhibit “DD” is a true and accurate copy an email from Captain
Timothy Trainor to Louis Luciani, Liju Thotam, and Mark Berger dated February 1, 2010, in
which Captain Timothy Trainor indicated that on Sunday, January 31, 2010, members of the
Brooklyn North Investigation Unit unsuccessfully attempted to serve plaintiff with a restoration
to “active duty”.
32. Attached as Exhibit “EE” is a true and accurate copy of a letter titled
“Notification to Appear for Restoration to Duty” dated February 3, 2010, from Captain Timothy
Trainor to plaintiff, in which plaintiff was directed to appear on February 4, 2010 at the NYPD’s
Department Advocate’s Office for restoration to “active duty.”
33. Attached as Exhibit “FF” is a true and accurate copy of the Civilian
Complaint Review Board history for Deputy Chief Michael Marino, in which there are no
substantiated incidents involving any allegation that any physical force was used by Deputy
Chief Michael Marino in any incident, and there are no substantiated allegations of unlawful
search or seizure, conspiracy, or retaliation.
34. Attached as Exhibit “GG” is a true and accurate copy of the Central Personnel
Index for Deputy Chief Michael Marino, in which there are no substantiated incidents involving
any allegation that any physical force whatsoever was used by Deputy Chief Michael Marino in
any incident, and there are no substantiated allegations of unlawful search or seizure, conspiracy,
or retaliation.

35. Attached as Exhibit “HH” is a true and accurate copy of the Internal Affairs
Bureau Officer Resume for Deputy Chief Michael Marino, in which there are no substantiated
incidents involving any allegation that any physical force whatsoever was used by Deputy Chief
Michael Marino in any incident, and there are no substantiated allegations of unlawful search or
seizure, conspiracy, or retaliation.
36. Attached as Exhibit “II” is a true and accurate copy of the Civilian Complaint
Review Board history for Deputy Inspector Steven Mauriello, in which there are no substantiated
allegations of unlawful search or seizure, conspiracy, or retaliation.
37. Attached as Exhibit “JJ” is a true and accurate copy of the Central Personnel
Index for Deputy Inspector Steven Mauriello, in which there are no substantiated allegations of
unlawful search or seizure, conspiracy, or retaliation.
38. Attached as Exhibit “KK” is a true and accurate copy of the Internal Affairs
Bureau Officer Resume for Deputy Inspector Steven Mauriello, in which there are no
substantiated allegations of unlawful search or seizure, conspiracy, or retaliation.
39. Attached as Exhibit “LL” is a true and accurate copy of the Central Personnel
Index for Assistant Chief Gerald Nelson, in which there are no substantiated allegations of
unlawful search or seizure, conspiracy, or retaliation.
40. Attached as Exhibit “MM” is a true and accurate copy of the Internal Affairs
Bureau Officer Resume for Assistant Chief Gerald Nelson, in which there are no substantiated
allegations of unlawful search or seizure, conspiracy, or retaliation.
41. Attached as Exhibit “NN” is a true and accurate copy of the Charges and
Specifications issued against Deputy Inspector Steven Mauriello.

42. Attached as Exhibit "OO" is a true and accurate copy of a recording of an

interview of plaintiff by the NYPD Quality Assurance Division in which plaintiff explicitly told
the NYPD investigator with whom he spoke that he did not want to be anonymous and that he
was not concerned with confidentiality.
o'OO," supro.
43, Attached as Exhibit "PP" is a transcript of Exhibit

44. Attached as Exhibit "QQ" is a true and accurate copy of the Charges and
Specifications issued against plaintiff, indicating that he was suspended on October 31, 2009 for
refusing to return to the

8l't Precinct after being

thereafter re-suspended

for refusing to return to work after he was released from Jamaica

accused

of leaving without authorization,

and

Hospital Medical Center on November 6,2009.
45. Attached as Exhibit "RR" is a true and accurate copy of relevant pages from
the Jamaica Hospital Medical Center file relating to plaintiff s admission pursuant to the Section
9,39 of the Mental Hygiene Law.

Dated

New York, New York
December 22,2014

ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorney .for City Defendants
100 Church Street, Room 3-200
New York, New York 10007
(212) 3s6-2372

By
Publicker Mettham
Senior Counsel
Special Federal Litigation Division

cc:

Nathaniel Smith (By ECF)
Attorney for Plaintiff
Gregory John Radomisli (By ECF)
MARTIN CLEARWATER & BELL LLP
Attorneys for Jamaica Hospital Medical Center
Brian Lee (By ECF)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
Paul Callan (By ECF)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Lillian Aldana-Bernier
Walter Kretz (By ECF)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello

Docket No 10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

DECLARATION OF
SUZANNA PUBLICKER METTHAM

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for City Defendants
100 Church Street, Room 3-200
New York, New York 10007
Of Counsel: Suzanna Publicker Mettham
Tel: [phone]

Due and timely service is hereby admitted.
New York, N.Y. ......................................................, 2014
.................................................................................. Esq.
Attorney for .......................................................................