Schoolcraft v. The City Of New York et al

Filing 306

MEMORANDUM OF LAW in Support re: 305 MOTION for Summary Judgment . . Document filed by Adrian Schoolcraft. (Smith, Nathaniel)

UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF NEW YORK
---------------------------------------------------------------x
ADRIAN SCHOOLCRAFT,
10–cv-6005 (RWS)
-against-

Plaintiff,

THE CITY OF NEW YORK, et al.,

MEMORANDUM OF LAW
IN SUPPORT OF PLAINTIFF’S
SUMMARY JUDGMENT
MOTION

Defendants.
--------------------------------------------------------------x
Preliminary Statement
Plaintiff, Police Officer Adrian Schoolcraft (“Officer Schoolcraft”), submits this
memorandum of law in support of his motion for partial summary judgment. The motion
seeks the following relief:
(1) dismissal of Defendant, Deputy Inspector Steven Mauriello’s counterclaims for
tortious interference with his employment relationship and for prima facie tort on the
grounds that there is no evidence to support several of the essential elements of those
claims;
(2) a judicial determination as a matter of law that the NYPD defendants’
warrantless entry into Officer Schoolcraft’s home on October 31, 2009 violated the Fourth
Amendment’s search and seizure provisions and that the NYPD defendants who made that
entry lacked any specific and objectively reasonable basis that could justify their
warrantless entry into Officer Schoolcraft’s home;
(3) a judicial determination that the defendants’ conduct in entering, remaining

2

in, and re-entering, Officer Schoolcraft’s home, in assaulting and handcuffing him, and in
detaining and forcing him to Jamaica Hospital as an “emotionally disturbed person”
violated Officer Schoolcraft’s constitutional rights and that no objectively reasonable
grounds exist that could justify the defendants’ conduct or their determination that Officer
Schoolcraft was an “emotionally disturbed person;” and
(4) a judicial determination that the forced and involuntary hospitalization of
Officer Schoolcraft by Jamaica Hospital and Doctors Bernier and Isakov violated Officer
Schoolcraft’s rights by involuntarily committing him without any determination that there
was a substantial risk that he was dangerous, as required by law.
Statement of Facts
On July 1, 2002, Officer Schoolcraft joined the New York City Police
Department (“NYPD”), and for most of his career, he was assigned as a Patrol Officer
in the 81st Precinct, which is located in the Bedford Stuyvesant neighborhood of
Brooklyn.1 The 81st Precinct is one of ten Precincts that are located in the geographical
area known as “Patrol Borough Brooklyn North.” As a Patrol Officer, Officer
Schoolcraft was a fine officer who ably and satisfactorily performed his duties and
received satisfactory or better performance reviews for most of his career.2

1

Plaintiff’s Motion Exhibit 1 (hereinafter “PMX”) at NYC 0001 (oath of office, dated 7-1-02).
PMX 1: NYC 005-007 (fine officer with great potential); 043-44 (“extremely competent” and
an “asset for the department); 045-46 (“highly competent”); 087-91 (“fine officer with great
potential”); 176-81 (“well-rounded officer” and a “steady and reliable performer”). For the years
2003, 2004, 2005 and 2006, Officer Schoolcraft received yearly performance evaluations of 3.5,

2

3

In October of 2006, the NYPD assigned Defendant Steven Mauriello to be the
Executive Officer of the 81st Precinct.3 As the Executive Officer, Mauriello was the
second in command at the 81st Precinct. According to Mauriello, he requested that
transfer because it was his stated desire to become a commanding officer of an NYPD
Precinct.4
After Defendant Mauriello’s arrival at the 81st Precinct, Officer Schoolcraft and
other officers at the 81st Precinct began getting increasingly greater pressure at roll calls
to achieve quotas on their number of arrests, summons and stops and to falsify
documentation about the receipt of training during roll calls.5 Because Officer
Schoolcraft had concerns about the lawfulness of these directions, he eventually began
tape recording roll calls at the 81st Precinct.6
Coincident with Defendant Mauriello’s arrival at the 81st Precinct, Officer
Schoolcraft’s performance evaluations began to decline.7 For 2007, Officer Schoolcraft
received a 3.0 rating, which was the equivalent of a marginally satisfactory rating.8 In
that evaluation, Officer Schoolcraft was criticized for not achieving “activity goals” and
4.0, 3.5 and 3.5, respectively. (PMX 1: NYC 398-400, 171-72; 176-78 & 179-81.) It was only
in 2007, after Defendant Mauriello became the Executive Officer and then the Commanding
Officer of the 81st Precinct in 2007 and 2008 that Officer Schoolcraft’s yearly performance
ratings dropped to 3.0 in 2007 and 2.5 in 2008. (PMX 1: NYC 186-88 & 173-75.)
3
PMX 2: SM 340-43.
4
PMX 3: Mauriello Tr. 48:15 (“I wanted to go back to be an XO and earn my way back up
again.”)
5
PMX 4: Schoolcraft Tr. 29:13-30:12 & 32:24-33:5.
6
Id.
7
See n. 2 supra.
8
PMX 1: NYC 065-69.

4

“performance goals,” which are coded phrases that refer to numerical quotas imposed
on Patrol Officers.9
After being the Executive Officer at the 81st Precinct for one year, “One Police
Plaza” made the decision on December 1, 2007 to promote DI Mauriello to the position
as Commanding Officer of the 81st Precinct, and later he received a promotion to the
title of Deputy Inspector (“DI”).10 Under the command of DI Mauriello, the pressure to
maintain numbers increased and Officer Schoolcraft’s performance evaluations came
under even greater scrutiny.
During the course of second, third and fourth quarters of 2008, Officer
Schoolcraft’s supervisors persistently criticized him for his low “activity” and his
failure to meet activity standards.11 Based on these criticisms, in January of 2009, DI
Mauriello gave Officer Schoolcraft a failing evaluation of 2.5.12 Tracking the negative
comments during the course of the year, DI Mauriello’s 2008 performance evaluation
9

See generally Floyd v City of New York, 959 F. Supp. 2d 540, 590, 596, 599 & n. 264
(S.D.N.Y. 2013) (the increase in the number of stops was achieved by pressure on commanders
at CompStat meetings to increase numbers and commanders in turn pressured mid-level mangers
and line officers to generate numbers; abundant evidence that supervisors directed officers to
meet numerical goals for stops, arrests and other enforcement activity as well as threating
officers with negative consequences if they did not achieve those goals; “supervisors must
evaluate officers based on their activity numbers, with particular emphasis on summons, stops,
and arrests, [and] officers whose numbers are too low should be subject to increasingly serious
discipline if their low numbers persist”)
10
PMX 3: Mauriello Tr. 51:12-25.
11
PMX 5 (PX 21): NYC 106 (as of May 2, 2008, “needs improvement in area of activity”); NYC
110 (as of July 4, 2008, “activity is still substandard and is unacceptable” and was instructed “on
productivity expectations’); NYC 116 (as of October 1, 2009, “does not meet activity standards”
and has been told about his “low activity”); NYC 122 (as of January 1, 2009, Officer Schoolcraft
has been counseled on “his poor activity which is unacceptable”).
12
PMX 1 (PX 51)(NYC 070-72); PMX 3: Mauriello Tr. 190:23-196:25.

5

recommended that Officer Schoolcraft be transferred because of his “poor activity,” for
his “approach to meeting the performance standards” and for his disregard of the
“activity standards” of an NYPD Police Officer.13
Officer Schoolcraft objected to this evaluation and informed his superiors that he
wanted to appeal the failing evaluation.14 The appeal process involved the transmission
of paperwork to the next level of the command structure, which was the Brooklyn North
Patrol Borough, headed by Defendant Chief Gerald Nelson and Defendant Deputy
Chief Michael Marino.15
At around this time, a poster appeared on Officer Schoolcraft’s locker containing
the words: “IF YOU DON’T LIKE YOUR JOB, THEN MAYBE YOU SHOULD
GET ANOTHER JOB.”16 Another handwritten note that later appeared on his locker
stated: “shut up, you idiot.”17
On February 25, 2009, Officer Schoolcraft met with several supervisors at the
81st Precinct, including DI Mauriello, and his new Executive Officer, Defendant
Captain Theodore Lauterborn.18 During the meeting, Officer Schoolcraft confirmed his
intent to appeal the failing 2008 performance evaluation and repeatedly asked for

13

PMX 1 (PX 51) at NYC 071)
PMX 3: Mauriello Tr. 190:18.
15
PMX 3: Mauriello Tr. 192:4 (“Chief Marino has an appeal board with borough inspectors”).
16
PMX 6: NYC 12004.
17
PMX 6: NYC 12005.
18
PMX 1: NYC 191 (Schoolcraft memo book entry).
14

6

information about what numbers are required of him.19 At the end of the meeting,
another of the 81st Precinct supervisors, Defendant Steven Weiss, specifically asked
Officer Schoolcraft if he was recording the meeting.20
In either late February or March of 2009, Mauriello went to the main office for
Patrol Borough Brooklyn North with Sergeant Weiss from the 81st Precinct and met
with Deputy Chief Marino about Officer Schoolcraft’s appeal of his failing 2008
evaluation and about Mauriello’s wish to transfer Schoolcraft out of the Precinct.21 DI
Mauriello requested that Officer Schoolcraft be transferred, and Deputy Chief Marino
denied that request at that time for lack of paperwork.22
On March 11, 2009, a labor attorney for Officer Schoolcraft, James A. Brown,
Esq., wrote DI Mauriello a letter about Officer Schoolcraft’s appeal of his failing
evaluation.23 Among other things, the letter documented previously-raised concerns
about “numerical goals” being used improperly in performance evaluations: “We are
concerned that our client’s negative evaluation is based not on the factors set forth in
Patrol Guide 205-48, but rather on his alleged lack of ‘activity’ related to his number of

19

PMX 3: Mauriello Tr. 190:18.
PMX 3: Mauriello Tr. 326; PMX 6: Weiss Tr. 111:7-114;12 (recalls believing that
Schoolcraft was recording and recalled asking Schoolcraft if he was recording the meeting in
February 2009 about the appeal but denies ever discussing that belief with Mauriello or
Executive Officer Lauterborn or Lieutenant Caughey).
21
PMX 6: Weiss Tr. 178:12-181:4; PMX 7: Marino Tr. 196:13-200:6; PMX 3: Mauriello Tr.
276:15-277:15.
22
Id.
23
PMX 8 (PX 57 & 22).
20

7

arrests and summons issued.24 After receiving the letter, DI Mauriello told Chief
Nelson about it and forwarded it to Patrol Borough Brooklyn North as part of the appeal
process.25
A few days later, on about March 15, 2009, while Officer Schoolcraft was on
patrol, Defendant Weiss issued to Officer Schoolcraft a command discipline for being
“off post” and having “unnecessary conversation” with another patrol officer.26
Officer Schoolcraft believed that he was being punished for the letter from his lawyer
and for appealing his evaluation, and as a result, made a formal request on his radio that
the Duty Captain for Patrol Borough Brooklyn North respond to the scene.27
In response, Defendant Lauterborn, who claimed to have been the Duty Captain
at the time, had Officer Schoolcraft brought back to the 81st Precinct. According to
Officer Schoolcraft’s recording of the meeting with Captain Lauterborn, Lauterborn
told Officer Schoolcraft that after the February meeting at the 81st Precinct to discuss his
appeal, he should not be surprised by the fact that he was going to get a lot more
“supervision” by the 81st Precinct supervisors and that the 81st Precinct supervisors were
now paying “closer attention” to him.28 Captain Lauterborn also told Officer
Schoolcraft that “this is gonna go on;” that he has “a long road ahead” of him; that
24

PMX 8: Id. at p. 2.
PMX 3: Mauriello Tr. 247:11-254:16.
26
PMX 9 at NYC 00081 (PX 168).
27
PMX 6: Weiss Tr. 98:2-19; PMX 10: Lauterborn Tr. 177:12-21 & 183:19-186:12
28
PMX 11: WS.310M_16MARCH2009_Report_Retaliation at 0:15-2:15, 5:45, & 28:50-31:30.
The recording is attached at part of a compact disk accompanying this motion together with other
records relevant to the motion.
25

8

going forward, he needs to “cross your t’s and dot your i’s;” and that the “supervision”
was “coming down hard” on him not just in the past two nights but since the day he
walked out of the appeal meeting in February of 2009.29
The same day that Officer Schoolcraft spoke to Captain Lauterborn, Sergeant
Weiss began reviewing police procedures on how to have Officer Schoolcraft
psychologically evaluated.30 Shortly after that, Sergeant Weiss contacted the NYPD’s
Early Intervention Unit and reported that he was “concerned” about the level of Office
Schoolcraft’s “mental distress.”31 Sergeant Weiss also did Internet research on Officer
Schoolcraft and found a news article in a local upstate newspaper about a burglary at his
father’s home and forwarded that article to the Early Intervention Unit.32
Within a week or two of Sergeant Weiss’ contacting the Early Intervention Unit,
Officer Schoolcraft was placed on modified or restricted duty without any law
enforcement or patrol duties and his gun and shield were removed.33 According to the
NYPD psychologist who testified that she was directly involved in the decision to place
Officer Schoolcraft on limited duty, Officer Schoolcraft was suffering from the physical
manifestations of stress.34 Based on that opinion, she recommended cognitive
behavioral therapy or stress management training to improve coping skills and to reduce
29

PMX 11: Id. at 30:00-31:30.
PMX 6: Weiss Tr. 120:6-121:2.
31
PMX 6: Weiss Tr. 99:14-101:4.
32
PMX 6: Weiss Tr. 103:6-109:3
33
PMX 6: Weiss Tr. 101:24-102:10.
34
PMX 12: Lamstein Tr. 172:21-174:20.
30

9

the physical symptoms of stress.35 The NYPD psychologist did not recommend any
medication, did not believe that Officer Schoolcraft was psychotic, and did not believe
that Officer Schoolcraft was dangerous to himself or others.36
As a result of being placed on limited duty, Officer Schoolcraft was assigned to
work at the 81st Precinct as the Telephone Switchboard operator, essentially taking calls
to the Precinct and handling walk-ins by members of the public.37 He held that position
from April 2009 through the end of October 2009.
While on limited duty, Officer Schoolcraft continued his attempts to challenge
his failing 2008 performance evaluation.38 He also started reporting misconduct by his
supervisors at the 81st Precinct.
On August 20, 2009, Officer Schoolcraft reported to the Internal Affairs Bureau
(“IAB”) on “corruption involving the integrity control program” at the 81st Precinct by
the Integrity Control Officer, Defendant Lieutenant Caughey and Assistant Integrity
Control Officer, Defendant Weiss.39 In addition, on August 31, 2009, a former
member of the service, David Dirk, reported that Officer Schoolcraft was the victim of

35

PMX 12: Lamstein Tr. 105:22-107:4.
PMX 12: Lamstein Tr. 113:15-115:2, 153:10-17, & 285:3-23.
37
PMX 13: Huffman Tr. 46:10-25.
38
On September 2, 20109, Officer Schoolcraft wrote a memorandum to DI Mauriello requesting
(again) that his appeal be processed and Mauriello testified that he received the memorandum
and forwarded it to the Sergeant at Patrol Borough Brooklyn North who handled the paperwork
for appeals. (PMX 14: (PX 58) & PMX 3: Mauriello Tr. 269:4-274:14).
39
PMX 15: Schoolcraft Report (PX 40).
36

10

retaliation by his supervisors.40
On September 2, 2009, Officer Schoolcraft spoke with IAB and reported that DI
Mauriello was pressuring his staff to downgrade or suppress crime reporting and that
under the direction of DI Mauriello police officers were being directed to make arrests
and issue summonses in “violation of people’s civil rights.”41 According to the IAB
report, Officer Schoolcraft also stated that he received his failing evaluation “because he
doesn’t believe in summons and arrest quotas” and that police officers “are being forced
to sign the training log even though they don’t get the necessary training.”42
On October 7, 2009, Officer Schoolcraft met with investigators from the
NYPD’s Quality Assurance Division (“QAD”).43 At the meeting, Officer Schoolcraft
reported in greater detail about the nature of the downgrading and suppression of major
crime reporting at the 81st Precinct.44 While QAD undertook to conduct an
investigation into those allegations, it also referred Officer Schoolcraft’s other
misconduct allegations to IAB.45
By the end of October of 2009, it was common knowledge within the 81st
Precinct that the Precinct was under investigation and that Officer Schoolcraft was
involved in reporting the misconduct that led to that investigation. Sometime earlier
40

PMX 16 (NYC 4785-86) (Attorneys’ Eyes Only (“AEO”) designation, filed under seal).
PMX 16 (NYC 4316-18) (Confidential designation, filed under seal).
42
Id.
43
PMX 16 at NYC 5158 (PX 169; NYC 5153-5248).
44
Id. at 5158-60.
45
Id. at 5159 & 5220.
41

11

that year, Captain Lauterborn learned from DI Mauriello of a QAD investigation of the
81st Precinct.46 In addition, towards the end of October, an 81st Precinct Sergeant told
DI Mauriello that QAD was calling down officers and based on that tip, DI Mauriello
called up an Inspector from QAD, who confirmed that there was an investigation.47
Indeed, this was not surprising news. Earlier in the year, there was persistent
speculation at the 81st Precinct that Officer Schoolcraft was tape recording at the
Precinct.48 In addition, Captain Lauterborn testified that as the QAD investigation was
heating up, he allegedly received complaints from other officers interviewed by QAD
that Officer Schoolcraft was asking them questions about their QAD interviews and
informed DI Mauriello about Officer Schoolcraft’s alleged conduct.49 Moreover,
supervisors at the 81st Precinct knew from their practice of inspecting or “scratching”
memo books that Officer Schoolcraft’s memo book contained the name of an IAB
officer.50 Finally, on October 19th Lieutenant Caughey issued a written order to all
officers in the command that all inquiries from IAB must be reported directly to him.51
On October 31, 2009 – the last day that Officer Schoolcraft reported to the 81st
Precinct – he worked the day tour and conducted his regular duties at the Telephone

46

PMX 10: Lauterborn Tr. 278:17-280:19
PMX 3: Mauriello Tr. 330:15-332:23 & 450:22-452:18.
48
PMX 10: Lauterborn Tr. 278:17-280:19.
49
PMX 10: Lauterborn Tr. 86:22-95:2. While Officer Schoolcraft denies doing this, the fact
that it was said by Defendant Lauterborn goes to his state of mind and beliefs about Officer
Schoolcraft.
50
PMX 10: Lauterborn Tr. 86:22-99:20 & 114:14-118:16
51
PMX17 (Caughey Memo).
47

12

Switchboard desk. During the course of that morning, Lieutenant Caughey took Officer
Schoolcraft’s memo book to “scratch it” and instead, kept it for several hours.52 While
in his office, Lieutenant Caughey made two photocopies of the entire memo book
because he saw “unusual” entries in it.53 Lieutenant Caughey kept one copy for himself
and put the other copy in DI Inspector Mauriello’s office desk.54
When he returned the memo book to Officer Schoolcraft later that day, Officer
Schoolcraft noticed (and became alarmed) that several pages of the memo book
containing his entries about corruption or misconduct were earmarked or folded down.55
Officer Schoolcraft grew more alarmed during the course of the day when Lieutenant
Caughey started acting toward Officer Schoolcraft in a menacing manner.56 Indeed, one
of the civilian workers at the Precinct, Police Administrative Aide (“PAA”) Curtis
Boston, saw Lieutenant Caughey walk by Officer Schoolcraft that day in an unusual
manner and twice during the course of that morning PAA Boston and Officer
Schoolcraft discussed Lieutenant Caughey’s unusual behavior toward Officer
Schoolcraft.57 PAA Boston specifically recalled that Officer Schoolcraft told her that he
felt uncomfortable about Lieutenant Caughey’s behavior and that Officer Schoolcraft
asked her to document her reasons for why she believed Lieutenant Caughey was acting
52

PMX 4: Schoolcraft Tr. 202:22-203:20; PMX 18: Caughey Tr. 120:18-121:19.
PMX 18: Caughey Tr. 122:11-20.
54
PMX 8: Caughey Tr. 127:24-128:15.
55
PMX 4: Schoolcraft Tr. 202:22-203-11.
56
PMX 4: Schoolcraft Tr. 118:3-25-120:10;
57
PMX 19: Boston Tr. 64:17-65:5 & 77:15-86:13.
53

13

in a suspicious manner.58
About one hour before the end of his scheduled day, Officer Schoolcraft told his
supervisor, Sergeant Huffman that he was not feeling well and was going home.59 At
the time, Sergeant Huffman told Officer Schoolcraft that that was “okay.”60 Officer
Schoolcraft also submitted to Sergeant Huffman a sick report, which could have been a
basis for authorizing him to take “administrative sick” for the day.61 As Officer
Schoolcraft was leaving the precinct, however, Sergeant Huffman told Officer
Schoolcraft that he could take “lost time”62 and Officer Schoolcraft told her that that
would be fine, although he would have preferred sick time.63
At about 3:30 pm, Officer Schoolcraft got home, which was located at 82-60
Eighty-Eighth Place, Queens, New York, and telephonically notified IAB of
Lieutenant’s Caughey’s menacing behavior.64 Officer Schoolcraft specifically
informed IAB that he felt threatened, retaliated against, and in danger as a result of
Lieutenant Caughey’s menacing behavior.65
About one hour later, at about 4:20 pm, a Sergeant Krohley, from the 104th

58

PMX 19: Boston Tr. 77:15-86:13 & 109:16-112:5.
PMX 13: Huffman Tr. 66:20-67:2 & 71:3-75:9.
60
PMX 13: Huffman Tr. 74:11-19.
61
PMX 13: Huffman Tr. 68:6-15 (administrative sick can be approved by the desk sergeant);
PMX 20: Valenti Tr. 14:20-16:13 (same).
62
PMX 13: Huffman Tr. 80:12-20.
63
PMX 4: Schoolcraft Tr. 123:23-124:14
64
PMX 4: Schoolcraft Tr. 126:3-127:18. The call to IAB is also recorded and identified as
DS.50_31October2009_Notify_IAB_Lt.Cauhey_Menacing.wma; PMX 11.
65
Id. at 19:40-26:10.
59

14

Precinct, went to Officer Schoolcraft’s home with his driver. Sergeant Krohley rang the
bell for Officer Schoolcraft’s apartment, which was on the second floor of a three-family
house, and when there was no answer, he spoke to the landlady, Carol Stretmoyer, who
told him that she believed that Officer Schoolcraft had left about thirty minutes ago.66
She also informed Sergeant Krohley that Officer Schoolcraft has a car, which was parked
on the street. Sergeant Krohley determined that the car was registered in the name of
Officer Schoolcraft’s father.67
At about 5:00 pm, Lieutenant Broschart from the 81st Precinct arrived at the
scene, and Sergeant Krohley briefed Lieutenant Broschart on the facts he had determined
since arriving at the scene.68 Lieutenant Broschart was under orders from DI Mauriello
and Captain Lauterborn to go to Officer Schoolcraft’s home and bring him back to the
Precinct.69 After arriving at the scene, Lieutenant Broschart also knocked on the door,
and when there was no answer, he updated Captain Lauterborn by telephone that Officer
Schoolcraft was not home and that the landlady had told him that he might have left.70
Captain Lauterborn told Lieutenant Broschart to stand by and wait to see if Officer
Schoolcraft returned.71

66

PMX 16 (NYC 4643) (AEO designation).
Id.
68
PMX 16: (NYC 4643) (AEO designation); see also PMX 11:
DS.50_31October2009_Notify_IAB_Lt.Cauhey_Menacing.wma at 40:52 (noting that at 4:18 pm
a black Impala in front of Officer Schoolcraft’s house and his door bell being rung).
69
PMX 20: Broschart Tr. 87:17-88:20.
70
PMX 20: Broschart Tr. 100:25-104:20.
71
Id.
67

15

Later that evening, Captain Lauterborn spoke with NYPD Psychologist Lamstein.
According to Psychologist Lamstein’s notes of the call, Captain Lauterborn told her that
Officer Schoolcraft left early that day and the “underlying issue” was that Officer
Schoolcraft “has made allegations against others” and the “dept’s investigation of those
allegations picked up this week & it snowballed from there.”72 Psychologist Lamstein
told Captain Lauterborn that she had seen Officer Schoolcraft just a few days ago and
that she “had no reason to think [Officer Schoolcraft] was a danger to himself or
others.”73
At about 7:40 pm that night, after speaking with Psychologist Lamstein, Captain
Lauterborn also called Officer Schoolcraft’s father and told the father that Officer
Schoolcraft left without permission and had to return to the 81st Precinct that night.74 The
father told Captain Lauterborn that he spoke to his son earlier that day, that his son told
him he felt sick in his stomach with a tummy ache and was going home and would call
him when he woke up.75 Lauterborn told the father that he needs to “physically talk to”
Officer Schoolcraft and “resolve things” and the situation is not going to “wait until the
morning.”76 Lauterborn insisted that he had to talk to Officer Schoolcraft “in person”
72

PMX 22 at NYC 282(PX 29); PMX 12: Lamstein Tr. 327:13-328:4.
PMX 12: Lamstein Tr. 319:24-25; see also PMX 23 Lauterborn Report (PX 16), 10-31-09 at
p. NYC 00095 (“She stated that although she did not believe he was an immediate threat to
himself or others his firearms were removed because of emotional distress caused by issues of
anger and resentment against the Department.”).
74
PMX 11: WS.331M_31October2009_LCS_ReturnPhoneCall to Capt. Lauterborn at 3:385:15.
75
Id.
76
Id. at 6:20-37.
73

16

and not “over the phone.”77 He also stated that the “situation was going to escalate as the
night goes on ” and that “no one is going in or out of that house he lives in because there
are police all over it.”78 If Officer Schoolcraft was there, Captain Lauterborn said that
“eventually we are going to make our way in.”79
Although the father assured Captain Lauterborn that his son was fine and was
probably sleeping, Captain Lauterborn insisted that it was not going to “end here” and
that Officer Schoolcraft should report to the Lieutenant on the scene outside his home.80
At 9:45 pm that night, after waiting five hours outside Officer Schoolcraft’s home,
the NYPD took a key from the landlord and entered his home.81 That entry, which was
made without a warrant, was made by at least ten supervisory NYPD officers. The entry
team was led by three Emergency Services Unit officers, who were followed by Deputy
Chief Marino, DI Mauriello, Captain Lauterborn, Lieutenant Broschart, and three
members of the Brooklyn North Investigation Unit (Lieutenant William Gough, Sergeant
Kurt Dunkin, and Sergeant Raymond Hawkins).82 At the time of their entry, the house
was also surrounded by numerous other members of the NYPD, including DI Keith
Green, the commanding officer of the 104th Precinct, Lieutenant Thomas Crawford (81st
Precinct); Sergeant Kevin Scanlon (104th Precinct); and several Police Officers who were

77

Id. at 8:00-05.
Id. at 9:55-10:06.
79
Id. at 10:10-20.
80
Id. at 10:55-11:00.
81
PMX 16 at NYC 00432 (2145 entry made into apartment).
82
PMX 3: Mauriello Tr. 349:13-350:21.
78

17

acting either as drivers for the supervisors at the scene or had set up a barricade to block
off street traffic.83 Also responding to the scene was FDNY Lieutenant Hanlon and two
Jamaica Hospital Emergency Medical Technicians (“EMT”).84
According to Deputy Chief Marino and DI Mauriello, the warrantless entry into
Officer Schoolcraft’s home was justified by their concerns for his “well-being.”85
Although Deputy Chief Marino admitted that he had no information that Officer
Schoolcraft had threatened to hurt himself or others,86 and although Psychologist
Lamstein had told Captain Lauterborn that to her knowledge he was not a threat to
himself or others, they allegedly believed that he was “possibly” an emotionally disturbed
person because he had been sent (by them) to psychological services earlier that year, had
been put on restricted duty without a gun and had left work early, allegedly against
orders.87
Upon entry, the Emergency Services Unit officers moved into Officer
Schoolcraft’s’ bedroom with their guns drawn, wearing bulletproof vests and helmets and
carrying tactical shields.88 Officer Schoolcraft was lying on his bed and it appeared that

83

Id. at NYC 000429.
PMX 16 at NYC 431.
85
PMX 7: Marino Tr. 255:15 (“I was thinking about Schoolcraft’s safety”) & 256:9-18
(believed there was “a possibility of” him being an emotionally disturbed person); but see id. at
258:5-16 (no information that Officer Schoolcraft had threatened to hurt himself or others).
PMX 3: Mauriello Tr. 357:24-358:22 (entry made out of concern for his well-being and safety).
86
PMX 7: Marino Tr. at 258:5-16.
87
PMX 3: Mauriello Tr. 357:24-358:22.
88
PMX 24: Duncan Tr. 119:4-120:19; PMX 25: Gough Tr. 141:4-25.
84

18

he was either watching TV or had just woke up.89 As reflected by the first moments of a
recording captured by Officer Schoolcraft’s voice-activated digital recorder, one of the
Emergency Service Unit officers asked Officer Schoolcraft, “You okay?” to which
Officer Schoolcraft replied, “Yeah, I think so.” Once DI Mauriello entered his bedroom,
he ordered Officer Schoolcraft to return to the 81st Precinct.90 The audio recording is on a
compact disk being submitted to the Court together with other recordings relevant to the
facts and issues raised by this motion.
As reflected by the recording, Officer Schoolcraft refused to return to the Precinct,
notwithstanding numerous threats and orders. Eventually, however, Officer Schoolcraft
succumbed to threats by Captain Lauterborn and Lieutenant Gough, and said he would go
under protest.91 Then a few moments later, Officer Schoolcraft stated that he had to sit
down because he was not feeling well and agreed to receive medical attention.92
While Officer Schoolcraft was being examined by Jamaica Hospital EMT
Salvatore Sangeniti, who had previously responded to the scene with an FDNY EMT
supervisor, Deputy Chief Marino returned to Officer Schoolcraft’s bedroom and berated
Officer Schoolcraft about feeling sick.93 And at the very moment when EMT Sangeniti
started taking Officer Schoolcraft’s blood pressure, Deputy Chief Marino, in a loud and
89

PMX 24: Duncan Tr. 127:11-20 (laying there on his bed watching TV); PMX 3: Mauriello
Tr. 359:2-5 (the TV was on).
90
PMX 3: Mauriello Tr. 356:11-357:15; PMX 11: (DS.50_31October
2009_HomeInvasion.wma at 2:48).
91
PMX 11: DS.50_31October 2009_HomeInvasion.wma at 5:15-8:40
92
PMX 11: DS.50_31October 2009_HomeInvasion.wma at 5:15-8:40.
93
PMX 11:DS.50_31October 2009_HomeInvasion.wma at 9:07-12:12.

19

angry tone of voice, suspended Officer Schoolcraft.94
Based on the circumstances confronting Officer Schoolcraft, he agreed to go to the
hospital associated with his primary care physician, which was Forest Hills Hospital, to
have his blood pressure checked out.95 When it became clear to Officer Schoolcraft,
however, that the NYPD was going to take him to Jamaica Hospital (which has a
psychiatric ward), Office Schoolcraft refused further medical attention and went back to
his apartment.96
As reflected in the second part of the recording of the events in his home that time,
Officer Schoolcraft returned to his apartment, laid back down in his bed and refused
further orders first by Captain Lauterborn and then by Deputy Chief Marino who returned
again to his home and entered without permission.97 Eventually, Deputy Chief Marino
declared Officer Schoolcraft an “emotionally disturbed person” (also known as an
“EDP”) and Captain Lauterborn, Lieutenant Broschart, Lieutenant Gough and Sergeant
Duncan grabbed Officer Schoolcraft from his bed, threw him on the floor of his bedroom
94

PMX 11: DS.50_31October 2009_HomeInvasion.wma at 11:00-12:12; PMX 26: Sangeniti Tr.
144:16-148:3 (Sangeniti confirming that at the point when Deputy Chief Marino suspends
Officer Schoolcraft he was taking his blood pressure; testimony based on the sounds made when
taking blood pressure).
95
PMX 11: DS.50_31October 2009_HomeInvasion.wma at 13:00-14:10.
96
PMX 4: Schoolcraft Tr. 149:7-151:2. This part of the sequence of events that evening
outside his home were not captured by the recorder that was in his bedroom. Although Officer
Schoolcraft also had a voice-activated digital recorder in his pocket that evening, Deputy Chief
Marino took possession of that device later in the evening and since then that recorder has
disappeared and the last Officer Schoolcraft saw of it was when Deputy Chief Marion put it in
his pocket. PMX 4: Schoolcraft Tr. 194:14-21.
97
PMX 4: Schoolcraft Tr. 1:4-155:8 (Lauterborn pursued Schoolcraft back into his apartment
and physically prevented him from shutting the doors behind him as he returned); PMX 11:
DS.50_31October 2009_HomeInvasion.wma at 17:50-22:00.

20

and cuffed him with his hands behind his back.98
More specifically, while Officer Schoolcraft was prone on the floor and Gough
and Duncan were forcing his wrists into handcuffs, Broschart stepped on the backs of his
legs, Lauterborn held him down with his hands, and Deputy Chief Marino put his boot on
Officer Schoolcraft’s face as he tried to turn his neck around to see what was being done
to his body.99 After the handcuffs were secured, Officer Schoolcraft was then forced into
an ESU chair, taken to the ambulance, placed on a stretcher with his hands cuffed behind
his back, and driven to Jamaica Hospital by the two Jamaica Hospital EMTs. Lieutenant
Broschart rode in the back of the ambulance to maintain custody of Officer
Schoolcraft.100
While the NYPD officers were in his apartment, they searched his person and his
apartment and seized a voice-activated digital recorder taken from his pocket as well as
several files belonging to Officer Schoolcraft, including copies of crime reports reflecting
the downgrading of crimes he reported to IAB and notes in a folder marked “Report to
the Commissioner.101 (They did not know about or seize the voice-activated digital
recorder that captured the events in the apartment that evening.)
Officer Schoolcraft arrived at Jamaica Hospital’s Emergency Room later that night

98

PMX 11: DS.50_31October 2009_HomeInvasion.wma at 21:30 -23:51.
PMX 4: Schoolcraft Tr. 166:21-168:19; PMX 21: Broschart Tr. 167:16-169:17; PMX 10:
Lauterborn Tr. 322:23-323:9.
100
PMX 11: DS.50_31October 2009_HomeInvasion.wma at 22:00-28:27 (removal from
apartment); PMX 21: Broschart Tr. 177:22-178:11 & 182:7-183:8 (escort to hospital).
101
PMX 4: Schoolcraft Tr. 173:12-177:17.
99

21

and spent the night handcuffed to a gurney in the Emergency Room. Hospital medical
records or the “chart” reflect that he was in custody of the NYPD the entire time.102
Admissions in depositions shows that Officer Schoolcraft was cuffed and under the
custody of Lieutenant Broschart until the Lieutenant was relieved at about midnight by
Defendant, Sergeant James, who was also from the 81st Precinct. Sergeant James
remained there until the morning.103
The following morning Defendant, Sergeant Frederick Sawyer, another supervisor
from the 81st Precinct, was sent to Jamaica Hospital to relieve Sergeant James. When
Sawyer got to the hospital, he saw Officer Schoolcraft on the telephone and, according to
Sawyer, he ordered him to get off the telephone.104 When Officer Schoolcraft did not
comply with that order, Sergeant Sawyer, Sergeant James, and their two drivers
physically forced Officer Schoolcraft onto the gurney and handcuffed his other hand to
the gurney, leaving him in a fully shackled position on the gurney.105 When Sawyer
applied the cuffs to Officer Schoolcraft, he used both hands to squeeze the cuffs tighter
and said “this is what happens to rats.”106
Later that morning, the two sets of handcuffs were removed and Officer
Schoolcraft was wheeled into the Jamaica Hospital Psychiatric Emergency Room to be
102

PMX 27: Jamaica Hospital Chart (PX 69 at JHMC 58) (Emergency Department Nursing
Notes). Plaintiff’s counsel has paginated the chart as “JHMC _.”
103
PMX 28: James Tr. 53:18-20, 59:17-60:16 & 67:14-71:16 .
104
PMX 29: Sawyer Tr. 139:25-146:15.
105
PMX 29: Sawyer Tr. 139:25-146:15 & 153:14-156:16.
106
PMX 4: Schoolcraft Tr. 186:11-22. Defendant Sawyer denies making this statement but
does admit to double cuffing Officer Schoolcraft. PMX 29: Sawyer Tr. 160:14.

22

held against his will for further “observation.”107
Two days later, on November 3, 2009, Doctor Bernier ordered Officer
Schoolcraft’s involuntary hospitalization, even though there was nothing in the chart that
suggested that Officer Schoolcraft was dangerous. After the paperwork was filled out,
Officer Schoolcraft was taken from the Psychiatric Emergency Room to a psychiatric
ward in the hospital.108
The next day, November 4, 2009, Doctor Isakov, who was an attending doctor on
the psychiatric ward, confirmed Dr. Bernier’s decision to involuntarily hospitalize Officer
Schoolcraft.109 As noted above, that decision was reached even though there was nothing
in the chart that suggested that Officer Schoolcraft was dangerous to himself or others.110
Indeed, both Doctor Bernier and Doctor Isakov testified at their depositions that they
admitted Officer Schoolcraft on the ground that any possible or potential risk of
dangerousness was a sufficient basis for their commitment decision.111 Moreover, Dr.
Dhar, who was the Jamaica Hospital witness in this action, also testified that it was the
policy and practice of the hospital to involuntarily commit a patient based on any
possibility that the person was dangerous.112
On November 6, 2009, after a forced stay lasting six days, Jamaica Hospital

107

PMX 27: Medical Chart (PX 69) at JHMC 45.
Id. at 91.
109
PMX 27 (PX 69) at p. 46.
110
See PMX 30: Report of Dr. Roy Lubit at p. 13-14.
111
PMX 31: Bernier Tr. 248-49; PMX 32: Isakov Tr. 94-98
112
PMX 33: Dhar Tr. 132-35.
108

23

released Officer Schoolcraft from its custody, the same day that insurance coverage for
his forced stay expired.113
After Officer Schoolcraft was released from Jamaica Hospital, he moved to
Johnstown, New York (just south of the Adirondacks) and for the next six months was
relentlessly harassed by the NYPD, which sent NYPD and local police officers on at least
twelve separate occasions to bang on his door, spy on him, and videotape him or his
father. Indeed, on at least two occasions, Lieutenant Gough and Sergeant Duncan, two of
the individual defendants who attacked Officer Schoolcraft in his home on October 31,
2009, traveled north over 200 miles to his home to deliver papers to him that could have
just as easily been sent to him by certified mail.114
Procedural History
This action was commenced on August 10, 2010 by the filing of the initial
summons and complaint. The pleadings have been amended several times with Officer
Schoolcraft filing his Second Amended Complaint on October 18, 2012 (Motion Exhibit
40). Thereafter, Defendant Mauriello obtained leave to amend his Answer to assert two
counterclaims against Officer Schoolcraft for tortious interference with prospective
employment relations and for prima facie tort (Motion Exhibit 34). More recently, on
December 4, 2014, Officer Schoolcraft filed a motion to amend his complaint to add and
to drop certain claims and allegations. That motion is currently scheduled for submission
113

PMX 27 (Medical Chart) at JHMC 128 (“The case is certified from 11/3/09 through 11/6/09.
Next review will be with Dan of Aetna….”).
114
PMX 16 at 3876.

24

on December 31, 2014.
Argument
1. The Summary Judgment Standard.
In Thompson v. Bosswick, 855 F. Supp. 2d 67 (S.D.N.Y. 2012), the
Court set forth the well-established summary judgment standard:
“Summary judgment should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). The courts do not try issues of fact on a motion for
summary judgment, but, rather, determine "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party seeking summary judgment bears the burden of establishing that
no genuine issue of material fact exists and that the undisputed facts establish [its]
right to judgment as a matter of law. Rodriguez v. City of N.Y., 72 F.3d 1051,
1060-61 (2d Cir. 1995). Summary judgment is appropriate where the moving party
has shown that "little or no evidence may be found in support of the nonmoving
party's case. When no rational jury could find in favor of the nonmoving party
because the evidence to support its case is so slight, there is no genuine issue of
material fact and a grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994)(citations omitted).
In considering a summary judgment motion, the Court must "view the evidence in
the light most favorable to the non-moving party and draw all reasonable inference
in its favor, and may grant summary judgment only when no reasonable trier of
fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79
(2d Cir. 1995) (internal citations and quotation marks omitted); see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). However, "[t]he non-moving party may not rely on
mere conclusory allegations nor speculation, but instead must offer some hard
evidence showing that its version of the events is not wholly fanciful." D'Amico v.
City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998).
When deciding a motion for summary judgment, a court must remain
mindful of the fact that summary judgment is "an extreme remedy, cutting off the
rights of the non-moving party to present a case to the jury." H & M Hennes &

25

Mauritz LP v. Skanska USA Bldg., Inc., 617 F. Supp. 2d 152, 155 (E.D.N.Y.
2008).”
Id. at 75-76.
2. Mauriello’s Counterclaims Should Be Dismissed as a Matter of Law.
In his Counterclaims, DI Mauriello asserts a claim against Officer Schoolcraft for
damages based on two legal theories: (A) tortious interference with prospective
employment relations; and (B) prima facie tort.115 The gravamen of the claim is that
Officer Schoolcraft made false statements about DI Mauriello to QAD on October 7,
2009 and that those false statements damaged his reputation with his employer, the
NYPD, and caused him emotional stress.116 Although the two legal theories are related,
they have certain distinct elements and are addressed below separately.
A. Tortious Interference
The elements of a claim for tortious interference with prospective employment
relations, which is an extension of the doctrine of tortious interference with prospective
business opportunity, has the following elements: (1) business relations with a third
party; (2) the defendant’s interference with those business relations; (3) the defendant
acted for the sole purpose of inflicting intentional harm to the plaintiff or employed
wrongful means.117 As this Court held in Thompson v. Bosswick,118 to establish this
claim the plaintiff must “demonstrate direct interference with a third party, that is the
115

PMX 34: Counterclaims at ¶2; Dkt # 231.
Id. at ¶¶ 4, 8-9 & 13.
117
Posner v. Lewis, 18 N.Y.3d 566, 942 N.Y.S.2d 447, 450 n. 2 (2012).
118
855 F. Supp. 2d 67, 83 (S.D.N.Y. 2012).
116

26

defendant must direct some activities toward the third party and convince the third party
not to enter into a business relationship with the plaintiff. ”119
Moreover, the injury to those relations must be concrete; a plaintiff claiming an
injury to his employment relationship must identify a specific relationship that he was
prevented from entering into as a result of the defendant’s alleged interference.120
Indeed, the law in New York on this claim requires a direct causal connection between
the alleged wrongful interference and the loss of that specific prospective opportunity.
Thus, a plaintiff such as Mauriello “must also demonstrate that a contract would have
been entered into ‘but for’ the defendants’ conduct.”121
Under these standards, there are several fatal defects in Mauriello’s claim. There
is no evidence that Officer Schoolcraft directly interfered with any specific employment
opportunity presented to DI Mauriello. Nor is there any evidence that Officer
Schoolcraft’s report of misconduct to QAD or IAB was done for the sole purpose of
causing Mauriello intentional harm, an essential element of his claim that is even belied
by Mauriello’s own pleading.122 Similarly, there is no evidence that any of Officer

119

Id. at 83 (citation omitted; emphasis added).
Baker v. The Guardian Life Ins. Co., 12 A .D. 3d 285, 286, 785 N.Y.S.2d 437 (1st Dept.
2004).
121
American Preferred Prescription, Inc. v. Health Management, Inc., 252 A.D. 2d 414, 417,
678 N.Y.S.2d 1, 5 (1st Dept. 1998) (summary judgment granted to defendant where plaintiff’s
“sketchy factual assertions do not demonstrate that plaintiff would have entered into any type of
contractual relation with the hospitals ‘but for’ defendants’ conduct, and the claim for tortious
interference with those relationships should be dismissed.”).
122
PMX 34 (Counterclaim ¶3(ii) (alleged conduct designed to “sanction” Mauriello “but also to
thereby create support for the claims plaintiff was planning to assert in a lawsuit he intended to
bring against the NYPD….”). At the time that Officer Schoolcraft was reporting misconduct, he
120

27

Schoolcraft’s conduct can be properly characterized as “wrongful means” as that phrase
has been define (i.e., criminal or fraudulent conduct). Nor can Mauriello show that it was
the alleged interference by Officer Schoolcraft that caused him any damages. Indeed,
since 2009 DI Mauriello has not suffered any cut in pay or demotion and cannot point to
any specific job opening that he was denied because of Officer Schoolcraft’s statements
to QAD or IAB. Thus, he cannot even show actual damages.
DI Mauriello was a material witnesses in the stop and frisk case recently tried in
this Courthouse before District Court Judge Shira A. Scheindlin, Floyd v. City of New
York, 08-cv-1034 (SAS) (Dkt. # 298). In that testimony, DI Mauriello stated that after
the quota allegations were made against him as the commanding officer of the 81st
Precinct, he was transferred on July 3, 2010 to become the Executive Officer of Transit
Borough Brooklyn and Queens. According to DI Mauriello’s testimony before Judge
Scheindlin, at the time of the transfer, the Chief of Patrol for the entire NYPD told DI
Mauriello that he was doing a “really good job at the 81st Precinct” and that he wanted to
reward him with the new position.123 While Mauriello did not claim then that the transfer
was a promotion, he did considered it a transfer to a position as “second commander to

was not planning a lawsuit against the NYPD such as the one now before the Court. Instead, he
was considering his legal options with regard to challenging the 2008 failing evaluation that DI
Mauriello gave him earlier that year. (PMX 4: Schoolcraft Tr. 11-26-13 at 42:7-45:22.) In fact,
he had already sent, through his attorney a letter to DI Mauriello challenging his 2008
evaluation. (PMX 8).
123
PMX 35: Mauriello Floyd Testimony (PX 48) at 1829:25-1831:11.

28

more officers.”124 While technically not a “promotion,” it was “a reward for the job [he]
did at the 81st Precinct.”125
Thus, based on his sworn testimony in the Floyd case, Mauriello cannot claim that
he has suffered any damage to his status at the NYPD. That testimony in that case alone
ought to be a sufficient basis alone to grant this motion, but other facts established in
discovery in this case reveal additional grounds that support this motion.
In his deposition in this case, DI Mauriello testified that soon after the news broke
in a February 2010 Daily News article about the investigation into downgrading major
crimes at the 81st Precinct, he attended a Patrol Borough Brooklyn North supervisors
meeting. At the meeting his direct supervisor, Deputy Chief Marino, told DI Mauriello
not to worry about the negative press because he did not believe it.126 In addition,
according to Mauriello, Deputy Chief Marino and the thirty-five other supervisors in the
room told DI Mauriello that they supported him.127 Thus, even if the news story was
based on something that Officer Schoolcraft said or did, Mauriello’s admissions
demonstrate that nothing Officer Schoolcraft said or did caused him any cognizable
harm.
Nor can DI Mauriello claim that he was denied some specific position or
promotion. At his deposition, DI Mauriello testified that he has not made any efforts to

124

Id. at 1831:17.
Id. at 1836:25.
126
PMX 3: Mauriello Tr. 98:12-103:25.
127
Id. at 103:16-25
125

29

change his position at the NYPD since October 2009 and that he has not made any
requests for any changes in his position since October 2009.128 The only information
that Mauriello could provide at his deposition was that he had vague, casual and very
general discussions in the summer of 2011 with his now-retired supervisor, Transit
Bureau Chief Diaz, and with his successor, Joseph Fox, who told him that any transfers
or promotions would likely have to wait until the case is over and that until then they
could not “push for him.”129
Since Mauriello’s tortious interference claim requires that he present admissible
evidence that Officer Schoolcraft directly interfered with a specific opportunity, the claim
should be dismissed as a matter of law. Without admissible evidence that the statements
made by Officer Schoolcraft to QAD or IAB caused Mauriello to lose a specific
opportunity, the claim is fatally flawed.
Yet there are even more critical flaws in Mauriello’s claim. As noted above,
Mauriello must also show that Officer Schoolcraft’s statements were made for the sole
purpose of intentionally inflicting harm on Mauriello or that Officer Schoolcraft used
wrongful means to inflict that harm. Under New York law, “if the defendant’s interest is
intended, at least in part, to advance its own competing interests, the claim will fail unless
the means employed include criminal or fraudulent conduct.”130 Since Mauriello’s
pleading and the record shows that Officer Schoolcraft was motivated by the fact that he
128

Id. at 419:4-420:10.
Id. at 466:11-470:9.
130
PPX Enterprises v. Audio Fidelity Enterprises, 818 F. 2d 266, 269 (2d Cir. 1987).
129

30

wanted to challenge his failing evaluation,131 the sole purpose test cannot be satisfied.132
Nor can DI Mauriello show that Officer Schoolcraft’s conduct in speaking to QAD
or IAB constitutes wrongful means. Courts have consistently required that the means
employed be “criminal or fraudulent conduct”133 or “threats” or similar kinds of
conduct.134 At best, Mauriello can claim only in the most general terms that Officer
Schoolcraft made derogatory statements about him or the 81st Precinct (notably he does
not assert a defamation claim and fails utterly to provide any kind of specificity about
what particular statements of fact that Officer Schoolcraft allegedly made of, or
concerning, him). Since DI Mauriello does not even attempt to set out a claim for
“defamation” he cannot and does not contend that the separate cause of action for

131

PMX 34(Counterclaim ¶3(ii) (alleged conduct designed to “sanction” Mauriello “but also to
thereby create support for the claims plaintiff was planning to assert in a lawsuit he intended to
bring against the NYPD….”). At the time that Officer Schoolcraft was reporting misconduct, he
was not planning a lawsuit against the NYPD such as the one now before the Court. Instead, he
was considering his legal options with regard to challenging the 2008 failing evaluation that DI
Mauriello gave him earlier that year. (PMX 4: Schoolcraft Tr. 11-26-13 at 42:7-45:22.) In fact,
he had already sent, through his attorney a letter to DI Mauriello challenging his 2008
evaluation. (PMX 8).
132
Durham Ind. v. North River Inc. Co., 673 F. 2d 37, 40 (2d Cir. 1982) (“the genesis which will
make a lawful act unlawful must be a malicious one unmixed with any other and exclusively
directed to injure and damage another.”); Hoesten v. Best, 34 A.D. 3d 143, 159, 821 N.Y.S.2d
40, 52 (1st Dept. 2006) (“no evidence that Best acted solely for the purpose of harming
plaintiff”); Mill v Mount Sinai Medical Center, 288 A.D. 2d 72, 733 N.Y.S. 2d 26 (1st Dept.
2001) (statements made within scope of defendant’s employment duties demonstrates that the
statements were not for the sole purpose of inflicting intentional harm). See also Marcella v.
ARP Films, Inc., 778 F. 2d 112, 119 ((2d Cir. 1985) (sole purpose element of claim for prima
facie tort not satisfied when “there are other motives, such as profit, self-interest, or business
advantage”).
133
PPX Enterprises v. Audio Fidelity Enterprises, 818 F. 2d 266, 269 (2d Cir. 1987).
134
Hoesten v. Best, 34 A.D. 3d 143, 159, 821 N.Y.S.2d 40, 52 (1st Dept. 2006); Miller, supra,
statements by supervisor about employee’s lack of qualifications not wrongful means).

31

defamation satisfies that aspect of the claim for tortious interference with prospective
advantage.
Mauriello also cannot raise a genuine issue of fact on the issue of causation,
particularly in the light of the substantial record evidence that any “injury” to his career is
based on the NYPD’s own findings of his own misconduct and conduct unbecoming an
Executive Police Supervisor. Official findings by two NYPD investigative agencies –
IAB and QAD – show that DI Mauriello personally committed misconduct and
improperly permitted rampant downgrading and suppression of crime reporting at the 81st
Precinct while under his command.
After Officer Schoolcraft was assaulted on October 31, 2009, IAB began an
investigation into whether DI Mauriello knew about or suspected at the time of his entry
into Officer Schoolcraft’s home that IAB or QAD was investigating the 81st Precinct.
IAB also made investigation into whether Mauriello knew about the contents of Officer
Schoolcraft’s memo book at the time he forced his way into his apartment. During the
course of those investigations, DI Mauriello was interviewed under oath by IAB, and at
his interview DI Mauriello made materially false statements about his knowledge about
the existence of an investigation into his Precinct and Officer Schoolcraft’s memo
book.135 Based on these findings, IAB recommended that formal charges against
Mauriello be filed, and those charges are still pending.136

135
136

PMX 15 (PX 144) (confidential designation)
PMX 3: Mauriello Tr. 635:3-651:6.

32

In addition, in 2010, QAD issued a report on its investigation. In that report, QAD
finds:

REACTED PORTION - FILED UNDER SEAL

.137
Given these findings against DI Mauriello, there cannot be any genuine issue of
material fact on whether the statements made by Officer Schoolcraft caused DI Mauriello
damage to his employment relationship with the NYPD.138 Indeed, the fact that these
conclusions were reached by governmental agencies raise an important – and dispositive
-- immunity issue in this case.
The New York Court of Appeals has stated that “[t]he best interests of the public
are advanced by the exposure of those guilty of offenses against the public and by the
unfettered dissemination of the truth about such wrongdoers. Such a person is entitled to
immunity from civil suit at the hands of the one exposed, for the truth is not to be
shackled by fear of a civil action for damages.”139 The general scope of that immunity

137

PMX 16 (PX 169) at NYC 5205 (emphasis added) (AEO designation; filed under seal)
(redacted ECF version).
138
Catskill Dev. LLC, v. Park Place Entm’t Corp., 547 F. 3d 115, 133 (2d Cir. 2008) (plaintiff
must show both wrongful means and that the wrongful acts were the proximate cause of the
alleged injury), cert. denied, 556 U.S. 1166 (2009).
139
Brandt v. Winchell, 3 N.Y. 2d 628, 170 N.Y.S. 2d 828 (1958).

33

was recently re-affirmed by the Court of Appeals in Posner v. Lewis,140 except that the
court in Posner refused to extend the absolute privilege articulated in Brandt to protect a
criminal blackmail scheme.141
This Court has already ruled that Officer Schoolcraft was acting in his official
capacity as a Police Officer when he reported misconduct to IAB and QAD.142 Since
there is no evidence that Officer Schoolcraft engaged in blackmail or any other type of
criminal conduct, absolute immunity requires dismissal of this claim as well as the related
claim for prima facie tort, which is addressed next.
B. Prima Facie Tort
The elements of a claim for prima facie tort are “(1) the intentional infliction of
harm, (2) which results in special damages, (3) without excuse or justification, (4) by an
act or series of acts which would otherwise be lawful. In addition, there can be no
recovery under this theory unless malevolence is the sole motive for the defendant’s
otherwise lawful act or in other words, unless defendant acts from disinterested
140

18 N.Y.3d 566, 942 N.Y.S.2d 447 (2012).
Id. at 572.
142
Schoolcraft v. City of New York, 2012 U. S. Dist. Lexis 82888 at * 22 & *27 ((June 14, 2012)
(plaintiff’s speech to IAB and QAD analogous to the unprotected speech in Garcetti and its
progeny). The Court should note that in rendering this decision, the Court relied extensively on
a decision by Judge Jones in Matthews v. City of New York, 2012 U.S. Dist. Lexis 53213
(S.D.N.Y. Apr. 12, 2012), which also found that an NYPD Police Officers’ speech was not
entitled to First Amendment protection. Since then, however, the Supreme Court in Lane v.
Franks, __ U.S. __, 134 S. Ct. 2369 (June 19, 2014) held that the critical inquiry under Garcetti
is whether the speech was part of the ordinary job functions of the public employee, and in the
light of Lane, the same issue in Matthews is now on appeal to the Second Circuit is sub judice.
In the event that the Second Circuit applies the Lane analysis to Matthews, then Officer
Schoolcraft will seek to re-assert those First Amendment claims previously dismissed by the
Court on the ground that the law has changed since the decision was rendered.
141

34

malevolence.”143
For the reasons already set forth above, DI Mauriello cannot establish a genuine
issue of material fact on the causation and the sole motivation requirements. Nor can he
overcome Brandt absolute immunity.
The prima facie tort claim also fails because DI Maureillo does not plead and
cannot establish a jury issue on the requirement of special damages. Nothing in his
pleading even attempts to satisfy this requirement and the only thing that he could offer
of any numerical nature at his deposition was the entirely speculative claim that he could
have been promoted to the position of Inspector with a $8,000 or $9,000 a year increase
in pay.144 Even though no one ever told him that he was being considered for that
promotion, DI Inspector believes it is “automatic” because he knows of other Deputy
Inspectors who have been promoted.145 Since this claim is utterly speculative, it must be
dismissed for this reason as well.
3. The Entry, Search, Seizure and Assault Lack Any Justification As a Matter of
Law.
By this motion Officer Schoolcraft requests that the Court determine as a matter of
law that the individual defendants who entered his apartment on October 31, 2009
without a warrant violated the Fourth Amendment and that no reasonable person could
have concluded that emergency exigent circumstances existed that would justify that

143

Posner, supra, at 568 n. 1.
PMX 3: Mauriello Tr. 578:24-582:7.
145
Id.
144

35

entry.146 By this motion, Officer Schoolcraft also requests that the Court determine that
the act of remaining in the home, the act of re-entering the home, and the searches,
seizures and detainment of Officer Schoolcraft also violated Officer Schoolcraft’s rights
under the Fourth Amendment.
“It is a basic principle of Fourth Amendment law that searches and seizures inside
a home without a warrant are presumptively unreasonable.”147 Warrants are generally
required to search a person’s home or his person unless the exigencies of the situation
make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable.148
“One exigency obviating the requirement of a warrant is the need to assist persons
who are seriously injured or threatened with such injury. The need to protect or preserve
life or avoid serious injury is justification for what would be otherwise illegal absent an
exigency or emergency. Accordingly, law enforcement officers may enter a home
without a warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.”149
The power of the police to force themselves into a home is a “grave concern” not
only to the individual but to a society which chooses to dwell in reasonable security and
146

The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
147
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (citations omitted).
148
Id. (citations omitted).
149
Id. (citations omitted).

36

freedom.150 For this reason “the police bear a heavy burden when attempting to
demonstrate an urgent need that might justify warrantless searches or arrests.”151 Thus:
Before agents of the government may invade the sanctity of the
home, the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of unreasonableness
that attached to all warrantless home entries.152
The NYPD defendants cannot establish their heavy burden of proving that Officer
Schoolcraft was dangerous to himself or anyone else. Indeed, they cannot point to a
single fact that would or could lead a rational person to conclude that he was in any kind
of imminent danger. Summary judgment on the issue, therefore, is appropriate because it
will narrow the genuine issues of fact for trial.
When the ten NYPD officials made their initial entry, the proffered reason was a
belief that Office Schoolcraft might hurt himself. Yet Deputy Chief Marino admitted that
he had no information that Officer Schoolcraft was a threat to himself or others.153
Indeed, that evening NYPD Psychologist Lamstein confirmed to Captain Lauterborn that
he was not, as of just three days ago, a danger to himself or others. Finally, Officer
Schoolcraft’s father told Captain Lauterborn that evening that he spoke to his son that
afternoon, that his son sounded fine, that he went home feeling sick with a tummy ache,
and was probably sleeping.
150

Welsh v Wisconsin, 466 U.S. 740 749 (1984) (quoting Justice Jackson in Johnson v United
States, 333 U.S. 10, 13-14 (1948)).
151
Id. at 749-750.
152
Id. at 743 (emphasis added).
153
PMX 7: Marino Tr. at 258:5-16 (no information that Officer Schoolcraft had threatened to
hurt himself or others).

37

In an attempt to demonstrate exigent circumstances, the NYPD defendants claim
that Officer Schoolcraft left work early and without permission and was on limited duty
with no guns or shield. Since it is undisputed that he told the Desk Sergeant that he was
sick and going home, the fact that he left early or without permission would certainly
justify reasonable follow-up and even disciplinary action. But it is surely a stretch to
suggest that those facts would lead a reasonable person to conclude that Officer
Schoolcraft was in imminent danger of hurting himself or others. And the fact that he
had no guns ought to have lessened any concern, not heightened it, particularly since he
had been on limited duty for the past seven months.
Indeed, the NYPD defendants’ delay demonstrates that there was no genuine
“emergency” and that there was no objectively reasonable belief that Officer Schoolcraft
was in imminent danger. The NYPD first arrived at his home at about 4:30 pm and did
not enter until 9:45 pm, which was more than five hours after the first officer arrived at
the scene. Moreover, the only relevant information they obtained during that five-hour
waiting period was that an NYPD psychologist said he was not dangerous and his father
said he was fine and probably sleeping.
While “short delays between an officer’s arrival at the scene of an alleged crime
and the officer’s entry of the premises do not necessarily negate the situation’s exigency,”
courts will require that “a reasonably productive investigation be conducted during the
period of the delay aimed at determining if exigent circumstances were objectively

38

present.”154
Here, the only information obtained during the NYPD’s exceedingly long delay
was that there was no emergency. “Exigent circumstances exist when there is an ‘urgent
need to render aid’ because someone is ‘in distress’ or ‘injured’ or threatened with
‘imminent injury.’ A warrantless entry is not objectively reasonable where it is based on
mere surmise as opposed to objective facts reasonably suggesting that an actual
emergency involving human safety existed.”155 “[T]he “mere ‘possibility of danger’ does
not make it objectively reasonable to believe that the circumstances were exigent.”156
Instead, the police “must be able to point to specific and articulable facts, which taken
together with rational inferences from those facts, reasonably warrant that intrusion.”157
Simply put, “the belated decision to enter was inconsistent with an objective sense
of urgency.”158 Since the NYPD defendants who made that entry (Marino, Mauriello,
Lauterborn, Broschart, Gough, Duncan and Hawkins) cannot satisfy their heavy burden
by pointing to objectively reasonable facts justifying their entry, the Court should hold
that the entry was unlawful as a matter of law.
The NYPD defendants’ conduct immediately after their entry not only confirms
154

Unites States v. Sikut, 488 F. Supp. 2d 291, 310 (W.D.N.Y. 2007), adopted, 2007 U.S. Dist.
Lexis 35995 (W.D.N.Y. May 16, 2007) (granting motion by defendant to suppress evidence
obtained based on a home entry that, as a matter of law, as not justified by exigent
circumstances).
155
Rivera v. Leto, 2008 U.S. Dist. Lexis 96680 at * 12 (S.D.N.Y. Nov. 25, 2008) (denying
motion for summary judgment by police who made warrantless entry) (citations and original
editorial alterations omitted).
156
Id. (quoting Hurlman v. Rice, 927 F. 2d 74, 81 (2d Cir. 1992)).
157
Sikut, supra, at 307 (citing and quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
158
Id. at 311.

39

that the initial entry was unlawful but constitutes additional grounds for a determination
by this Court that their subsequent conduct was also unlawful as a matter of law. When
the ten NYPD officers entered Officer Schoolcraft’s apartment, it is undisputed that they
saw him in bed, the television in his bedroom was on, and he looked like he just woke
up.159 At that moment, the Constitution (as well as common sense and a healthy regard
for basic notions of common curtsey) required them to leave.160
“Like a warrantless entry into a home, a warrantless search inside a home is
presumptively unreasonable. It must be strictly circumscribed by the exigencies which
justify its initiation.”161 “The officer’s post-entry conduct must be carefully limited to
achieving the objective which justified the entry – the officer may do no more than is
reasonably necessary to ascertain whether someone is in need of assistance and to
provide that assistance.”162
Rather than leaving, Deputy Chief Marino, DI Mauriello, Captain Lauterborn and
Lieutenant Gough ordered Officer Schoolcraft to return to the 81st Precinct “to explain”
why he left. And when he ultimately refused to go to Jamaica Hospital, Deputy Chief
Marino declared him an “EDP” and Lieutenant Gough and Sergeant Duncan dragged him
159

PMX 24: Duncan Tr. 127:11-20 (laying there on his bed watching TV); PMX 3: Mauriello
Tr. 359:2-5 (the TV was on and Schoolcraft’s eyes were red and is hair was standing up).
160
Sikut, 488 F. Supp. 2d at 313 (“Once the officers became aware of such facts [showing no
exigency], they were required by the Fourth Amendment to leave the apartment.”) (citing Mincey
v. Arizon, 437 U. S. at 393).
161
Rivera, supra, at *17 (citing and quoting Mincey v. Arizona, 437 U.S. 385 (1978) and 3
Wayne LaFave, Search and Seizure, § 6.6(a) at 400-01 (3d ed. 1996)).
162
Rivera, 2008 U.S. Dist. Lexis 96680 at * 17 (quoting Tierney v. Davidson, 133 F. 3d 189,
197-98 (2d Cir. 1998) (citing and quoting 3 Wayne LaFave, Search and Seizure, § 6.6(a) at 40001 (3d ed. 1996)).

40

off his bed, threw him on the floor, and with the assistance of Lieutenant Broschart and
Captain Lauterborn, who were holding him down on the floor, and with the assistance of
Deputy Chief Marino, who put his boot on Officer Schoolcraft’s face, they rear cuffed
him, searched him, shackled him into an ESU chair and removed him to the Jamaica
Hospital ambulance waiting on the street.
There is simply no evidence in the record that could support a rational finding by a
jury that Officer Schoolcraft appeared to be mentally ill or that he was conducting
himself in a manner likely to result in serious harm to himself or others, as required by
the law.163 Accordingly, assaulting and cuffing Officer Schoolcraft and taking him in

163

Section 9.41 of the Mental Hygiene Law sets forth the powers of the police when dealing with
emotionally disturbed persons. That section provides:
§ 9.41. Emergency admissions for immediate observation, care, and treatment; powers of
certain peace officers and police officers. [Until July 1, 2016 (see 1989 note below), § 9.41 reads
as set out below:] Any peace officer, when acting pursuant to his or her special duties, or police
officer who is a member of the state police or of an authorized police department or force or of a
sheriff's department may take into custody any person who appears to be mentally ill and is
conducting himself or herself in a manner which is likely to result in serious harm to the
person or others. Such officer may direct the removal of such person or remove him or her to any
hospital specified in subdivision (a) of section 9.39 or any comprehensive psychiatric emergency
program specified in subdivision (a) of section 9.40, or, pending his or her examination or
admission to any such hospital or program, temporarily detain any such person in another safe
and comfortable place, in which event, such officer shall immediately notify the director of
community services or, if there be none, the health officer of the city or county of such action.
(emphasis added).
And the term “likely to result in serious harm” is specifically defined: "likelihood to
result in serious harm" or "likely to result in serious harm" means (a) a substantial risk of
physical harm to the person as manifested by threats of or attempts at suicide or serious bodily
harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a
substantial risk of physical harm to other persons as manifested by homicidal or other violent
behavior by which others are placed in reasonable fear of serious physical harm. MHL § 9.01
(emphasis added). The phrase “likely to result is serious harm” is precisely and stringently
defined by the statute. Rueda v. Charmaine, 17 N.Y. 3d 522, 528 (2011). Accordingly, the
Court should reject any attempts by the defendants to permit generalities to cloud the exacting

41

custody to the hospital to be committed as dangerous and mentally ill violated his rights
under the Fourth and Fifth Amendments.164
Although the defendants contend that Officer Schoolcraft’s blood pressure was
very high and that that condition justified taking him into custody and forcing him to get
treatment, those facts does not raise a genuine issue of material fact on the question of
dangerousness for several reasons. First, the EMT who took the blood pressure reading
at the precise moment Deputy Chief Marino suspended Officer Schoolcraft testified to
the patently obvious fact that the tense circumstances could cause anybody’s blood
pressure to rise.165 Second, Officer Schoolcraft’s expert report by Dr. Halpren-Ruder, an
emergency room doctor with 30 years experience, provides conclusive and unrebutted
evidence that the blood pressure reading taken from Officer Schoolcraft did not provide
any medically meaningful information precisely because of the well-known fact that
stressful events will alter a person’s blood pressure.166 Third, the fact that someone has
high blood pressure, even dangerously high blood pressure, does not mean that they lose
standards required by the law to protect the liberty of the people.
164

Kerman v. City of New York, 261 F. 3d 229, 240 & n. 7 (2d Cir. 2001) (Fourth Amendment
protects a person from being improperly detained by the police for transport to the hospital);
Kerman v. City of New York, 374 F. 3d 93, 110-11 (2d Cir. 2004) (law clearly established that a
state cannot constitutionally confine a non-dangerous person who is capable of surviving in
freedom); Tsesarskaya v. City of New York, 843 F. Supp. 2d 466 (S.D.N.Y. 2012) (summary
judgment denied for police invoking MHL § 9.41 because the law requires a dangerousness
assessment).
165
PMX 26: Sangeniti Tr. 93:22-100:25 (160/120 reading was a high blood pressure reading
that could be explained by the stressful circumstances under which it was taken).
166
PMX 36 (Report by Dr. Halpren-Ruder) at p. 1 (“the recorded vital signs lack[ed] meaningful
medical significance as it is well established that acute psychological and/or physical stress can
raise blood pressure significantly.”)

42

the well-established constitutional right to refuse medical treatment.167
The audio recording of the events that occurred in Officer Schoolcraft’s apartment
that night demonstrate that there is no genuine issue of material fact and that the NYPD
defendants violated Officer Schoolcraft’s constitutional rights by assaulting him, by
placing him in custody as an “EDP” for transport to a psychiatric facility, and by using
force to do so without any justification or authorization permitted by law. Where the
evidence is clear, summary judgment can and should be entered, even in favor of a
plaintiff.
In Cameron v City of New York,168 the Second Circuit affirmed the denial of a
plaintiff’s motion for judgment as a matter of law. The plaintiff offered a video of her
arrest that strongly suggested that the police officer’s version of the events was untrue.
The Second Circuit noted that the evidence was very strong but nevertheless affirmed the
denial of the plaintiff’s motion for judgment as a matter of law because the video was not
continuous, and was in fact a series of photographs shot at a two-second frequency.
Thus, it was possible that the plaintiff’s claim was undercut by acts not captured on the
film, and under the circumstances the Second Circuit was not able to rule as a matter of
law for the plaintiff.

167

Green v. City of New York, 465 F. 3d 65, 84 & n. 13 (2d Cir. 2006) (“Dangerousness to one’s
self cannot be read to include a competent adult’s right to refuse treatment because competent
adults have a well-established right to refuse medical treatment.”) The FDNY Lieutenant at the
scene testified that a person, such as Officer Schoolcraft, who had decisional capacity, has the
right to refuse medical attention. PMX 37: Hanlon Tr. 77:3-78:4
168
598 F. 3d 50 (2d Cir. 2010).

43

In this case, the tape recording of the events of October 31, 2009 is continuous,
and it and the other undisputed facts in the record conclusively demonstrate that the
NYPD had no grounds for deeming Officer Schoolcraft an EDP or putting him in
custody. The Cameron case sets forth the standard governing this argument:
We review the denial of a motion for judgment as a matter of law de novo,
and will grant the motion only if "a reasonable jury would not have a legally
sufficient evidentiary basis to find for the [non-movant] on that issue." Fed.
R. Civ. P. 50(a)(1); see also Olivier v. Robert L. Yeager Mental Health Ctr.,
398 F.3d 183, 188 (2d Cir. 2005). We "must draw all reasonable inferences
in favor of the nonmoving party, and . . . may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
But "[o]ur obligation to draw all reasonable inferences in favor of [the nonmovant] does not mean we must credit a version of the facts that is belied by
the record. Tabbaa v. Chertoff, 509 F.3d 89, 93 n.1 (2d Cir. 2007).
Accordingly, we "give credence to . . . that evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses." Reeves, 530 U.S. at 151
(internal quotation marks omitted). When a movant presents
"[i]ncontrovertible evidence . . . such as a relevant videotape whose
accuracy is unchallenged," we will grant the movant's motion for judgment
as a matter of law if that evidence "so utterly discredits the opposing party's
version that no reasonable juror could fail to believe the version advanced
by the moving party." Zellner, 494 F.3d at 371; see also Scott v. Harris, 550
U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007).169
Similarly, the Supreme Court in Scott v. Harris,170 recently held that a court is not
required to shut its eyes and cover its ears when ruling on a summary judgment motion:
When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment. That was the case here with regard to the
169
170

Id. at 59-60.
550 U.S. 372 (2007).

44

factual issue whether respondent was driving in such fashion as to endanger
human life. Respondent’s version of events is so utterly discredited by the
record that no reasonable jury could have believed him. The Court of
Appeals should not have relied on such visible fiction; it should have viewed
the facts in the light depicted by the videotape.171
The claim that Officer Schoolcraft was dangerous is just the type of visible fiction
that should be rejected as a matter of law by the Court.
4. The Medical Defendants’ Decision to Involuntarily Commit Officer Schoolcraft
Based on “Any Possibility” of Dangerousness Violated His Constitutional Rights.
The undisputed facts and admissions by the defendants at their depositions
demonstrate that Jamaica Hospital had a de facto policy and practice of involuntarily
committing patients who presented any potential risk of dangerousness. And the
undisputed facts and deposition admissions also demonstrate that both Jamaica Hospital’s
attending emergency room physician (Defendant Bernier) and its attending physician in
the psychiatric ward (Defendant Isakov) made their commitment decision based on the
conclusion that Officer Schoolcraft presented only a possible or potential risk of
dangerousness.
Based on these admissions, Officer Schoolcraft is entitled to summary judgment
on the issue of liability because state and federal law explicitly require that an involuntary
commitment decision be based on a substantial risk of dangerousness. By departing
from the explicit statutory standards established under New York law, Jamaica Hospital,
Dr. Bernier and Dr. Isakov are therefore liable for false imprisonment and for violations

171

Id. at 380-81.

45

of Officer Schoolcraft’s constitutional rights to liberty, freedom and due process.172 They
are also liable as a matter of law for negligence per se, based on their admitted statutory
violation.173
Section 9.39 of the New York State Mental Hygiene Law is the governing
statutory provision for an emergency involuntary commitment.174 Generally, the statute
provides that a doctor can involuntary commit a person on an emergency basis provided
that the doctor finds (i) that the person has a mental illness; (ii) that the person requires
immediate care, and (iii) that there has been established a likelihood of serious harm to
the patient or others.
To protect a patient’s rights, likelihood of serious harm is “precisely and
stringently” defined175 in the statute to mean either:
“1. substantial risk of physical harm to himself as manifested by threats of or
attempts at suicide or serious bodily harm or other conduct demonstrating that he is
dangerous to himself, or
2. a substantial risk of physical harm to other persons as manifested by
homicidal or other violent behavior by which others are placed in reasonable fear of

172

See, e.g., DeMarco v. Sadiker, 952 F. Supp. 134, 141 (E.D.N.Y. 1996) (common law false
imprisonment claim against doctor arising from involuntary commitment requires proof that (1)
the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of it; (3) the
plaintiff did not consent; and (4) that the confinement was not otherwise privileged; privilege
issue turns on whether the defendant complied with the New York Mental Hygiene Law, which
is also an essential defense to a claim for violation of the patient’s constitutional claims).
173

174
175

See n. 186-188 and accompanying text infra.

MHL § 9.39.
Rueda v. Charmaine, 17 N.Y.2d 522, 528 (2011).

46

serious physical harm.”176
The medical defendants were not free to simply disregard the law. In Rodriguez v.
City of New York,177 the Second Circuit held that an assessment of a person’s
dangerousness is required by the due process clause of the Constitution.178 Rodriguez
also holds that due process requires that “the decision to order an involuntary emergency
commitment be made in accordance with a standard that promises some reasonable
degree of accuracy.”179 Thus, by effectively writing the substantial risk element out of
the law and making a commitment decision based on mere possibilities, the medical
defendants removed an important procedural and substantive safeguard required by the
law, thereby subjecting patients to wandering vagaries and untethered speculations about
mere possibilities of danger.
To establish a valid defense against a claim under Section 1983 for deprivation of
an involuntarily committed patient’s constitutional rights to due process and liberty, the
medical defendants must satisfy Section 9.39 of the Mental Hygiene Law. Compliance
with Section 9.39 is also required as a defense to a Section 1983 claim of unlawful
imprisonment and the parallel common law claims. In Project Release v. Prevost,180 the
Second Circuit held that the provisions of Section 9.39 facially satisfy the due process

176

Id. (emphasis added).
72 F. 3d 1051 (2d Cir. 1995).
178
Id. at 1061 (“As a substantive matter, due process does not permit the involuntary
hospitalization of a person who is not a danger either to herself or to others.”)
179
Id. at 1062 (emphasis added).
180
722 F. 2d 960, 972-74 (2d Cir. 1983).
177

47

clauses of the Fifth and Fourteenth Amendments. In addition, District Courts within the
Second Circuit have held that compliance with Section 9.39 can establish the privilege
defense to a claim for unlawful imprisonment.181 Thus, a finding of a substantial risk of
dangerousness is an essential requirement under state and federal law, and the medical
defendants were not free to simply disregard it.
Since the deposition of the Rule 30(b)(6) witness for Jamaica Hospital (Dr. Dhar)
as well as the depositions of Defendants Dr. Bernier and Dr. Isakov, the two doctors who
made the decisions to commit and to retain Officer Schoolcraft in the Jamaica Hospital
psychiatric facility, show that Officer Schoolcraft was involuntarily committed based on
a hospital policy and practice that violated Officer Schoolcraft’s constitutional rights,
there is no genuine issue for trial on the issue of their liability. Thus, the motion should
be granted.
The medical defendants may argue that its “official” or written policy document
tracks the requirements of Mental Hygiene Law Section 9.39 by requiring a substantial
risk of dangerousness. Indeed, the pre-printed admission form filled out by Dr. Bernier,
which authorized Officer Schoolcraft’s commitment, calls for a finding of a substantial
risk of dangerousness. Similarly, the formal hospital policy statement mimics the
“substantial risk” language of the statute.182

181

See, e.g., Tewksbury v. Dowling, 169 F. Supp. 103, 112 (E.D.N.Y. 2001); see also Ruhlmann
v. Smith, 323 F. Supp. 2d 356, 360 (N.D.N.Y. 2004) (whether confinement was privileged
depended on whether Section 9.39 was satisfied); see also DeMarco, supra, at 141.
182
See PMX 38: Emergency Admission Form (PX 171); PMX 39: JHMC Department of

48

But all three Jamaica Hospital medical witnesses testified in deposition that any
potential risk of dangerousness was all that was required to commit someone
involuntarily to their psychiatric facility. The admitting doctor who signed the preprinted form, Defendant Bernier, testified at her deposition that if there was any potential
risk that Officer Schoolcraft was dangerous she would have committed him
involuntarily.183 Similarly, Dr. Isakov, the attending doctor at the psychiatric ward who
co-signed the same form, confirming Dr. Bernier’s commitment decision, testified that no
matter what the level of risk (low, medium, high), if he perceived that there is any
potential risk of dangerousness, he would involuntarily commit.184 Finally, the Rule
30(b)(6) witness for the hospital, Dr. Dhar, testified that the policy and practice at
Jamaica Hospital was to involuntarily commit a patient where there was any risk of
dangerousness.185 Thus, the written policy document cannot trump the undisputed facts
about the de facto policy or its application in this case.
Based on these undisputed facts, Jamaica Hospital is also liable for negligence per
se as a matter of law. Under the common law, a defendant is negligent for failing to
exercise that degree of care that a reasonably prudent person would have exercised under
the same circumstances. On the other hand, violation of a statute that imposes a specific

Psychiatry Manual on Emergency Admissions (PX 70).
183
PMX 31: Bernier Tr. 248-49.
184
PMX 32: Isakov Tr. 94-98.
185
PMX 33: Dhar Tr. 132-35.

49

duty constitutes negligence per se.186 When a statute (such as Section 9.39) is designed
to protect a particular class of persons against a particular type of harm and it is invoked
by a member of the protected class, a court may, in furtherance of the statutory purpose,
interpret the statute as creating an additional standard of care.187 Violation of such a
statutory standard, if unexcused, constitutes negligence per se so that the violating party
must be found negligent if the violation is proved.188 Thus, the Court should find that
Jamaica Hospital, Dr. Bernier, and Dr. Isakov violated of Section 9.39 when they
committed Officer Schoolcraft under an “any possibility” standard, not the “substantial
risk” standard required by that express statutory requirement.

186

See Van Gaasbeck v. Webatuck Cent. School Dist. No. 1, 21 N.Y.2d 239, 243, 287 N.Y.S.2d
77 (1967); Elliott v. City of New York, 95 N.Y.2d 730, 734 (2001).
187
See Trimarco v. Klein, 56 N.Y.2d 98, 108, 451 N.Y.S.2d 52(1982); Martin v. Herzog, 228
N.Y. 164, 168, 126 N.E. 814 (1920); Restatement, Torts 2d, § 286; 1 PJI [2d ed.], pp. 152–153.
188
See generally 2 Harper & James, Law of Torts, § 17.6; Dance v. Town of Southampton, 95
A.D.2d 442, 445-50, 467 N.Y.S.2d 203, 206-08 (2d Dept. 1983).

50

Conclusion
DI Mauriello’s counterclaims should be dismissed as a matter of law because he
cannot establish several of the essential elements of his common law claims.
Summary judgment should be granted on the issue of liability against the NYPD
defendants for the warrantless entry, the warrantless search and their unlawful
imprisonment of Officer Schoolcraft.
Summary judgment should also be granted on the issue of liability against the
medical defendants for their unlawful and unprivileged decision to involuntarily detain
Officer Schoolcraft.
Dated: December 23, 2014
s/NBS
__________________________
Nathaniel B. Smith
s/JL
__________________________
John Lenoir