Schoolcraft v. The City Of New York et al

Filing 508

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - SECOND MOTION in Limine precluding testimony on purported Declaratory Judgment Action. Document filed by Isak Isakov. Return Date set for 10/2/2015 at 12:00 PM. (Attachments: # 1 Affidavit Declaration of Brian E. Lee, # 2 Exhibit Exhibit A - May 2015 Order, # 3 Exhibit Exhibit B - January 2015 Order, # 4 Exhibit Exhibit C - Third Amended Complaint)(Lee, Brian) Modified on 9/23/2015 (db).

Case 1:10-cv-06005-RWS Document 436 Filed 05/05/15 Page 1 of 206

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
ADRIAN SCHOOLCRAFT,
Plaintiff,
10 Civ. 6005 (RWS)
- against Opinion
CITY OF NEW YORK, ET AL.,
Defendants.
---------------------------------------X

A P P E A R A N C E S:

Attorney for the Plaintiff
LAW OFFICE OF NATHANIEL B. SMITH
111 Broadway
Suite 1305
New York, NY 10006
By: Nathaniel B. Smith, Esq.

Attorney for the City Defendants
ZACHARY W. CARTER
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By: Ryan Shaffer, Esq.

Attorneys for Defendant Stephen Mauriello
SCOPPETTA SEIFF KRETZ & ABERCROMBIE, LLP.
440 Madison Avenue, 30th Floor
New York, NY 10022
By: Walter A. Kretz, Jr., Esq.

Case 1:10-cv-06005-RWS Document 436 Filed 05/05/15 Page 2 of 206

Attorneys for Defendant Jamaica Hospital Medical
Center
MARTIN CLEARWATER & BELL, LLP.
220 East 42nd Street
New York, NY 10017
By: Gregory J. Radomisli, Esq.

Attorneys for Defendant Lillian Aldana-Bernier
CALLAN, KOSTER BRADY & BRENNAN, LLP
220 East 42nd Street
New York, NY 10017
By: Matthew Joseph Koster, Esq.

Attorneys for Defendant Isak Isakov
IVONE, DEVINE & JENSEN, LLP
2001 Marcus Avenue, Suite N100
Lake Success, NY 11042
By: Brian E. Lee, Esq.

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I.  PRIOR PROCEEDINGS ......................................... 2 
II.  FACTS ..................................................... 5 
A.  Schoolcraft’s Career with NYPD ........................... 6 
B.  Schoolcraft’s 2008 Performance Review .................... 7 
C.  March 2009 Disciplinary Incident ........................ 11 
D.  Psychological Evaluation, Restricted Duty Placement ..... 13 
E.  Schoolcraft’s Report to Internal Affairs and NYPD’s
Response .................................................... 18 
F.  October 31, 2009 – Schoolcraft’s Tour of Duty ........... 22 
G.  October 31, 2009 – Events Subsequent to Schoolcraft’s
Departure ................................................... 26 
H.  October 31, 2009 – NYPD’s First Entry into Schoolcraft’s
Apartment ................................................... 37 
I.  October 31, 2009 – NYPD’s Second Entry into Schoolcraft’s
Apartment ................................................... 49 
J.  Arrival at Jamaica Hospital ............................. 54 
K.  Events Subsequent to Release from Jamaica Hospital ...... 77 
III.  APPLICABLE STANDARD ...................................... 88 
IV.  CONSTITUTIONAL LAW CLAIMS RELATING TO CITY DEFENDANTS AND DI
MAURIELLO..................................................... 89 
A.  Fourth Amendment Claims Survive Summary Judgment ........ 89 
i.  NYPD’s Initial Entry into Schoolcraft’s Home .......... 89 
ii. 
NYPD’s Decision to Remain In Schoolcraft’s Home ...... 96 
iii.  Designation as an EDP ................................ 98 
B.  First Amendment Claim Survives Summary Judgment ........ 104 
i.  Schoolcraft Engaged in Protected Speech .............. 105 
ii. 
Post-Suspension Free Speech Claim is Not Established 118 
iii.  Pre-Suspension Speech Claim Survives Summary Judgment 121 
iv. 
Qualified Immunity Attaches to the First Amendment Claim
123 
C.  Monell Claims against City Defendants Survive Summary
Judgment ................................................... 124 
i.  Well-Settled Custom .................................. 126 
ii. 
Failure to Train.................................... 133 
D.  Section 1983 Conspiracy Claim is Dismissed ............. 134 
i.  Intra-Corporate Conspiracy Doctrine .................. 135 
ii. 
Conspiracy Claims as Between the City Defendants and
Jamaica Hospital are Dismissed ............................ 138 
V.  REMAINING CLAIMS RELATING TO CITY DEFENDANTS AND DI
MAURIELLO.................................................... 142 
A.  False Arrest and Imprisonment Claims Survive Summary
Judgment ................................................... 142 
B.  Intentional Infliction of Emotional Distress Claim against
City Defendants Survives Summary Judgment .................. 143 

iii

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C.  Common Law Negligent Hiring, Training, Supervision and
Retention Claim against City Defendants is Dismissed........ 144 
D.  Negligent Disclosure of IAB Complaint Claim is Dismissed 145 
i.  Public Policy Does Not Bar Claim ..................... 146 
ii. 
Schoolcraft’s Claim is Dismissed .................... 148 
E.  Malicious Abuse of Process Claim is Dismissed .......... 150 
F.  DI Mauriello’s Counterclaims are Dismissed ............. 151 
G.  DI Mauriello Remains a Defendant ....................... 160 
i.  False Arrest and Use of Force Claims, and their State Law
Analogues against DI Mauriello are Dismissed .............. 161 
ii. 
Unlawful Search Claim Against DI Mauriello is Dismissed
162 
iii.  Failure to Intercede Claim Against DI Mauriello Survives
Summary Judgment ......................................... 163 
iv. 
Warrantless Entry Claim against DI Mauriello Survives
Summary Judgment ......................................... 163 
H.  Claims with Respect to Other NYPD Officer Defendants ... 164 
i.  Captain Trainor is Dismissed as a Defendant .......... 164 
ii. 
Captain Lauterborn Remains a Defendant .............. 165 
iii.  Assistant Chief Nelson Remains a Defendant .......... 165 
iv. 
Lieutenant Caughey Remains a Defendant .............. 168 
VI.  CLAIMS RELATING TO JAMAICA HOSPITAL MEDICAL CENTER ...... 170 
A.  Section 1983 Claims against JHMC are Dismissed ......... 170 
B.  State Law Medical Malpractice Claims against JMHC Survive
Summary Judgment ........................................... 180 
i.  Expert Testimony Raises Triable Issues ............... 180 
ii.  JHMC Liable for Physicians’ Alleged Malpractice ..... 190 
C.  Negligent Hiring, Retention, Training and Supervision Claim
against JHMC is Dismissed .................................. 193 
D.  Negligence Per Se Claim against JHMC is Dismissed ...... 195 
E.  Intentional Infliction of Emotional Distress Claim against
JHMC is Dismissed .......................................... 196 
VII.  CLAIMS RELATING TO THE ATTENDING PHYSICIANS ............. 198 
A.  Section 1983 Claims against the Attending Physicians are
Dismissed .................................................. 198 
B.  Intentional Infliction of Emotional Distress Claims against
the Attending Physicians are Dismissed ..................... 198 
C.  Declaratory Relief Claims Survive Summary Judgment ..... 198 
D.  State Law Claims Survive Summary Judgment .............. 199 
E.  False Arrest and Imprisonment Claims Survive Summary
Judgment ................................................... 200 
VIII.  CONCLUSION ........................................... 202 

iv

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Sweet, D.J.

Plaintiff Adrian Schoolcraft (“Schoolcraft” or
“Plaintiff”); Defendants Christopher Broschart, Timothy Caughey,
Kurt Duncan, Elise Hanlon, Theodore Lauterborn, Michael Marino,
Gerald Nelson, Frederick Sawyer, The City Of New York, Timothy
Trainer (“City Defendants”); Defendant Deputy Inspector Steven
Mauriello (“DI Mauriello”); Defendant Jamaica Hospital Medical
Center (“Jamaica Hospital” or “JHMC”); Defendant Dr. Lillian
Aldana-Bernier (“Dr. Bernier”), and Defendant Dr. Isak Isakov
(“Dr. Isakov”) (collectively “the Attending Physicians”); all
move for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.

Based upon the facts and conclusions

set forth below, the parties’ motions are granted in part and
denied in part.

1

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I.

PRIOR PROCEEDINGS
Plaintiff initiated this action alleging Section 1983

and a number of state law causes of action, by filing a summons
and complaint on August 10, 2010.

Plaintiff filing an Amended

Complaint on September 13, 2010, in response to which Jamaica
Hospital filed a motion to dismiss.

The Court dismissed

Schoolcraft’s Section 1983 claim against Jamaica Hospital with
leave to replead, and retained supplemental jurisdiction with
respect to the state law claims against Jamaica Hospital.
Schoolcraft v. City of New York, No. 10 CIV. 6005 RWS, 2011 WL
1758635 (S.D.N.Y. May 6, 2011).

On May 9, 2012, Schoolcraft submitted a motion seeking
leave to amend his complaint to, inter alia, include a First
Amendment claim under 42 U.S.C. § 1983 relating to his internal
reporting of improper conduct at the 81st Precinct.

That

request was denied in this Court’s Opinion dated June 14, 2012
on the basis that Schoolcraft’s internal reporting was made in
his capacity as a public employee, and therefore not protected
under the First Amendment.

Schoolcraft v. City of New York, No.

10 CIV. 6005 RWS, 2012 WL 2161596 (S.D.N.Y. June 14, 2012).

On

June 20, 2012, Plaintiff submitted a letter to the Court
requesting reconsideration.

The motion to reconsider was also

denied in the Court’s Opinion dated July 20, 2012 on the basis
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that Plaintiff, in his briefing regarding the motion to amend,
never raised the issue of protected speech made after his
suspension on October 31, 2009 and did not raise the argument
that he had no duty to report misconduct following his
suspension.

Schoolcraft v. City of New York, No. 10 CIV. 6005

RWS, 2012 WL 2958176 (S.D.N.Y. July 20, 2012).

On August 1,

2012, Plaintiff wrote to the Court requesting leave to amend his
complaint to add a First Amendment claim relating to the NYPD’s
alleged harassment after October 31, 2009 and for unlawful
seizure and detention on October 31, 2009.

The Court granted

him leave to plead a First Amendment claim with respect to the
instances of harassment and suspension.

Schoolcraft v. City of

New York, No. 10 CIV. 6005 RWS, 2012 WL 3960118 (S.D.N.Y. Sept.
10, 2012).

On October 1, 2012, Schoolcraft filed a Second Amended
Complaint (“SAC”) that included the First Amendment claim.

DI

Mauriello filed a motion seeking leave to amend his answer and
assert counterclaims against Schoolcraft on September 24, 2013.
The Court denied his request as part of an Opinion filed
November 21, 2013.

Schoolcraft v. City of New York, 296 F.R.D.

231, 233 (S.D.N.Y. 2013).

DI Mauriello moved for

reconsideration, and the Court granted his motion on March 14,
2014.

Schoolcraft v. City of New York, 298 F.R.D. 134, 136
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(S.D.N.Y. 2014).

On March 18, 2014, DI Mauriello filed his

amended Answer and Counterclaims.

The SAC remained the operative complaint through the
end of 2014, including for the extensive period of fact and
expert discovery.

On December 4, 2014, Plaintiff moved for

permission to amend the SAC.

While that motion was pending, all

parties moved for summary judgment.

Plaintiff received leave to file a Third Amended
Complaint (“TAC”) on January 16, 2015.

Schoolcraft v. City of

New York, No. 10 CIV. 6005 RWS, 2015 WL 252413, at *1 (S.D.N.Y.
Jan. 16, 2015).

Subsequently, all parties save Plaintiff filed

amended motions for summary judgment.

The motions were heard on

submission and marked fully submitted on March 6, 2015.

Subsequently, Plaintiff requested that a reply
affidavit from Dr. Bernier be stricken, which City Defendants
opposed, and DI Mauriello requested that he be allowed to reopen
discovery to obtain information regarding Plaintiff’s
involvement in a film relating to the substance of this case.

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II.

FACTS
The facts are principally derived from Schoolcraft’s

and Defendants’ Statements of Undisputed Facts submitted in
support of their motions for summary judgment pursuant to Local
Rule 56.1, read in conjunction with the parties’ responses to
the 56.1 Statements.1

Denials that the evidence cited in support of a
particular statement does not support that statement, in
instances where the evidence uncontrovertibly does support that
statement, are treated as admissions.

Denials without support

or explanation are treated as admissions.

Statements

characterized as “additional undisputed facts” included in Dr.
Bernier’s responses to Schoolcraft’s 56.1 statements but absent
1

As part of Plaintiff’s submissions in support of his and in opposition to
Defendants’ summary judgment motions, Plaintiff generated two consolidated
documents. The first, “Plaintiff’s Rule 56.1 Statement Consolidated with
Defendants’ Responses,” filed March 6, 2015 (hereinafter cited as “Pl.’s
Consol. 56.1 Statement”), contains all of Plaintiff’s 56.1 facts along with
all of Defendants’ responses to each fact. This document also contains a
section entitled “Additional Material Facts As To Which Mauriello Contends
There Exist Genuine Issues To Be Tried, Thus Requiring Denial Of Plaintiff’s
Motion For Summary Judgment: Mauriello’s Counterclaims.” References to
statements contained in that section will be cited as “Pl.’s Consol. 56.1
Statement Mauriello Countercl.”
The second consolidate document, “Plaintiff’s Rule 56.1 Responsive
Statement,” filed February 11, 2015, contains all Defendants’ 56.1 statements
along with all of Plaintiff’s responses. For the sake of simplicity,
references to Defendants’ 56.1 statements will cite to the portion of the
Plaintiff’s Rule 56.1 Responsive Statement, rather than Defendants’
individual filings. Each citation will begin with the name of the Defendant,
followed by “Consol. 56.1 Statement” (e.g., the portion of Plaintiff’s Rule
56.1 Responsive Statement corresponding to the City’s 56.1 Statement will be
referred to as “City’s Consol. 56.1 Statement”).

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from Dr. Bernier’s 56.1 Statement are considered in dispute.
(Compare Dr. Bernier’s Response to Plaintiff’s Rule 56.1
Statement and Statement of Additional Undisputed Facts, pp. 4153, ¶¶ 1-53 with Dr. Bernier’s Statement Pursuant to Local Civil
Rule 56.1.)

Finally, the inclusion of statements in this

Opinion that were challenged on admissibility grounds by the
parties reflect a ruling that the admissibility challenge is
overruled.

The following facts are not in material dispute except
as noted below.

A. Schoolcraft’s Career with NYPD
1.

On July 1, 2002, 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.
(Pl.’s Consol. 56.1 Statement, ¶ 1.)

2.

The 81st Precinct is one of ten precincts that

are located in the geographical area known as “Patrol Borough
Brooklyn North” (“PBBN”).

All Defendants save DI Mauriello

admit that, as a Patrol Officer, Schoolcraft was a fine officer
who ably and satisfactorily performed his duties and received
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satisfactory or better performance reviews for most of his
career.

(Pl.’s Consol. 56.1 Statement, ¶ 2.)

3.

In October of 2006, the NYPD assigned DI

Mauriello to be the Executive Officer of the 81st Precinct.

As

the Executive Officer, DI Mauriello was the second in command
at the 81st Precinct.

According to DI Mauriello, he requested

that transfer because it was his stated desire to earn an
appointment as a Commanding Officer as well as a promotion to
Inspector and perhaps Assistant Chief.

(Pl.’s Consol. 56.1

Statement, ¶ 3.)

4.

After being the Executive Officer at the 81st

Precinct for one year, DI Mauriello was promoted to Commanding
Officer of the 81st Precinct on December 1, 2007, and he later
received a promotion to the title of Deputy Inspector (“DI”).
(Pl.’s Consol. 56.1 Statement, ¶ 8.)

B. Schoolcraft’s 2008 Performance Review

5.

During the course of second, third, and fourth

quarters of 2008, Schoolcraft’s performance reviews referenced

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his low “activity” and his failure to meet activity standards.
(Pl.’s Consol. 56.1 Statement, ¶ 10.)

6.

Schoolcraft received a failing evaluation of 2.5

in his 2008 performance evaluation, which was delivered in
January of 2009.

7.

(Pl.’s Consol. 56.1 Statement, ¶ 11.)

DI Mauriello’s 2008 performance evaluation

recommended that Schoolcraft be transferred.

(Pl.’s Consol.

56.1 Statement, ¶ 12.)

8.

Schoolcraft objected to this evaluation and

informed his superiors that he wanted to appeal the failing
evaluation.

9.

(Pl.’s Consol. 56.1 Statement, ¶ 13.)

At around this time, a poster appeared on

Schoolcraft’s locker containing the words:

“IF YOU DON’T LIKE

YOUR JOB, THEN MAYBE YOU SHOULD GET ANOTHER JOB.”

(Pl.’s

Consol. 56.1 Statement, ¶ 15.)

10.

Another handwritten note that later appeared on

his locker stated:

“shut up, you idiot.”

Statement, ¶ 16.)

8

(Pl.’s Consol. 56.1

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11.

Schoolcraft believes that he was isolated from his

fellow officers in the 81st Precinct.

(City’s Consol. 56.1

Statement, ¶ 11.

12.

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
Assistant Chief Gerald Nelson and Defendant Deputy Chief
Michael Marino.

13.

(Pl.’s Consol. 56.1 Statement, ¶ 14.)

On February 25, 2009, Schoolcraft met with

several supervisors at the 81st Precinct (the “February Appeal
Meeting”), including DI Mauriello, and his new Executive
Officer, Defendant Captain Theodore Lauterborn.

(Pl.’s Consol.

56.1 Statement, ¶ 17.)

14.

At the February Appeal Meeting, Schoolcraft did

not expressly discuss illegal quotas and crime
misclassification.

Instead, he spoke about not knowing how

much activity was needed and that the numbers on his evaluation
were not adding up correctly.

(Mauriello’s Consol. 56.1

Statement, ¶ 1.)

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15.

During the February Appeal Meeting, Schoolcraft

confirmed his intent to appeal the failing 2008 performance
evaluation and repeatedly asked for information about what
numbers were required of him.

(Pl.’s Consol. 56.1 Statement, ¶

18.)

16.

At the end of the February Appeal Meeting,

another of the 81st Precinct supervisors, Sergeant Steven Weiss
specifically asked Schoolcraft if he was recording the meeting.
(Pl.’s Consol. 56.1 Statement, ¶ 19.)

17.

In or around early March of 2009, DI Mauriello

attended a meeting at the main office for Patrol Borough
Brooklyn North with Deputy Chief Marino and Sergeant Weiss from
the 81st Precinct (the “March Evaluation Meeting”).

DI

Mauriello discussed, inter alia, Schoolcraft’s appeal of his
failing 2008 evaluation and DI Mauriello’s wish to transfer
Schoolcraft out of the Precinct.

(Pl.’s Consol. 56.1

Statement, ¶ 20.)

18.

During the March Evaluation Meeting, DI

Mauriello requested that Schoolcraft be transferred, and Deputy

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Chief Marino denied that request at that time for lack of
paperwork.

19.

(Pl.’s Consol. 56.1 Statement, ¶ 21.)

On March 11, 2009, a labor attorney representing

Schoolcraft, James A. Brown, Esq., wrote DI Mauriello a letter
regarding Schoolcraft’s appeal of his failing evaluation.
Among other things, the letter stated:

“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 arrests and summons
issued.

(Pl.’s Consol. 56.1 Statement, ¶ 22.)

20.

After receiving the letter, DI Mauriello told

Assistant Chief Nelson about it and forwarded it to Patrol
Borough Brooklyn North as part of the appeal process.

(Pl.’s

Consol. 56.1 Statement, ¶ 23.)

C. March 2009 Disciplinary Incident
21.

On or about March 16, 2009, while Schoolcraft was

on patrol, Sergeant Weiss issued a command discipline to
Schoolcraft for being “off post” and having “unnecessary
conversation” with another patrol officer.
Statement, ¶ 24.)

11

(Pl.’s Consol. 56.1

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22.

Schoolcraft believed that he was being punished

for the letter from his labor attorney and for appealing his
evaluation.

(Pl.’s Consol. 56.1 Statement, ¶ 25.)

23.

Schoolcraft made a formal request on his radio

that the Duty Captain for Patrol Borough Brooklyn North respond
to the scene.

24.

(Pl.’s Consol. 56.1 Statement, ¶ 25.)

In response to Schoolcraft’s radio request,

Captain Lauterborn, who was serving as Duty Captain at the
time, had Schoolcraft brought back to the 81st Precinct.
According to Schoolcraft’s recording of the meeting with
Captain Lauterborn, Captain Lauterborn told Schoolcraft that
after the February Appeal Meeting.

Captain Lauterborn said

that Schoolcraft 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 as a result of Schoolcraft’s
performance.

25.

(Pl.’s Consol. 56.1 Statement, ¶ 26.)

During his conversation with Captain Lauterborn,

Schoolcraft explained his feelings as follows:

12

“I just feel my

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safety and the public’s safety is being compromised because of
the acts of retaliation . . . because of [the] appeal.”
(Mauriello’s Consol. 56.1 Statement, ¶ 6.)

26.

Captain Lauterborn also told Schoolcraft that

“this is gonna go on;” that he had “a long road ahead” of him;
that going forward, he needed 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 February Appeal Meeting.

(Pl.’s Consol. 56.1 Statement,

¶ 27.)

D. Psychological Evaluation, Restricted Duty Placement
27.

Schoolcraft believes that he was the victim of a

conspiracy to falsely portray him as psychologically
unbalanced.

28.

(City’s Consol. 56.1 Statement, ¶ 12.)

On or about March 16, 2009, Sergeant Weiss began

reviewing police procedures on how to have Schoolcraft
psychologically evaluated.

(Pl.’s Consol. 56.1 Statement, ¶

28.)

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29.

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.”

30.

(Pl.’s Consol. 56.1 Statement, ¶ 29.)

Sergeant Weiss also did Internet research on

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.

(Pl.’s Consol.

56.1 Statement, ¶ 30.)

31.

On April 3, 2009, Schoolcraft went to a hospital

emergency room because of chest pain and received an injection
of medication commonly used to treat anxiety.

The hospital

also gave Schoolcraft a prescription for two more doses of the
same medication in pill form.

(Mauriello’s Consol. 56.1

Statement, ¶ 8.)

32.

On April 6, 2009, Schoolcraft went to see his

private physician, Dr. Sure, who indicated Schoolcraft should
not return to work until April 14, 2009.
56.1 Statement, ¶ 9.)

14

(Mauriello’s Consol.

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33.

On April 6, 2009, Dr. Sure wrote a letter to the

NYPD excusing Schoolcraft from work for eight days.

(City’s

Consol. 56.1 Statement, ¶ 15.)

34.

As required by NYPD procedures, after being out

sick on the advice of Dr. Sure, Schoolcraft then had to be seen
by an NYPD doctor before returning to work.

(Mauriello’s

Consol. 56.1 Statement, ¶ 10.)

35.

Dr. Catherine Lamstein-Reiss (“Dr. Lamstein”), an

NYPD psychologist, testified that she was consulted in
connection with placing Schoolcraft on restricted duty on April
13, 2009.

She concluded that Schoolcraft was suffering from

the physical manifestations of stress.

Based on that opinion,

she recommended cognitive behavioral therapy or stress
management training to improve coping skills and to reduce the
physical symptoms of stress.

(Pl.’s Consol. 56.1 Statement, ¶

32.)

36.

According to Dr. Lamstein, Schoolcraft complained

that he had recently received a poor performance evaluation and
that his superiors had met with him in an effort to have
Schoolcraft be a more active police officer.

15

(Mauriello’s

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Consol. 56.1 Statement, ¶ 22.)

37.

Dr. Lamstein indicated in her Consultation Report

a diagnosis of “stress/anxiety” and recommended
“psychotherapy”, specifically cognitive behavioral therapy “to
improve coping skills [and] reduce physical symptoms of
stress.”

Dr. Lamstein indicated that she was concerned that

Schoolcraft’s primary care physician had recently prescribed a
medication known for being anti-psychotic, but still noted his
prognosis was “good, with treatment.”

(Mauriello’s Consol.

56.1 Statement, ¶ 14.)

38.

Dr. Lamstein also indicated in her notes that she

urged Schoolcraft to see a psychologist.

Schoolcraft disputes

this, contending that she “suggested books on the topic of
stress management, and therapies such as yoga.”

(Mauriello’s

Consol. 56.1 Statement, ¶ 16.)

39.

Schoolcraft was placed on restricted duty without

any law enforcement or patrol duties, and his gun and shield
were removed on April 13, 2009.

(Pl.’s Consol. 56.1 Statement,

¶ 31.)

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40.

As a result of being placed on restricted duty,

Schoolcraft was assigned to work at the 81st Precinct as the
Telephone Switchboard operator, essentially taking calls to the
Precinct and handling walk-ins from members of the public.
(Pl.’s Consol. 56.1 Statement, ¶ 34.)

41.

Schoolcraft held that position from April 2009

through the end of October 2009.

(Pl.’s Consol. 56.1

Statement, ¶ 35.)

42.

All defendants save DI Mauriello admit that while

on restricted duty, Schoolcraft continued his attempts to
challenge his failing 2008 performance evaluation.

(Pl.’s

Consol. 56.1 Statement, ¶ 36.)

43.
27, 2009.

44.

Schoolcraft returned to see Dr. Lamstein on July
(Mauriello’s Consol. 56.1 Statement, ¶ 17.)

Schoolcraft returned again to see Dr. Lamstein on

October 27, 2009.

45.

(Mauriello’s Consol. 56.1 Statement, ¶ 18.)

Dr. Lamstein concluded that Schoolcraft should

continue on restricted duty on July 27, 2009 and on October 27,

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2009.

(Mauriello’s Consol. 56.1 Statement, ¶ 19.)

46.

Dr. Lamstein testified that she repeated her

recommendation that Schoolcraft see a psychologist on October
27, 2009.

47.

(Mauriello’s Consol. 56.1 Statement, ¶ 20.)

Schoolcraft testified that he did not recall

seeing a psychologist subsequent to his meetings with Dr.
Lamstein.

(Mauriello’s Consol. 56.1 Statement, ¶ 21.)

E. Schoolcraft’s Report to Internal Affairs and NYPD’s
Response
48.

On August 20, 2009, Schoolcraft reported to the

Internal Affairs Bureau (“IAB” of “Internal Affairs”) on
“corruption involving the integrity control program” at the
81st Precinct by the Integrity Control Officer, Defendant
Lieutenant Timothy Caughey and Assistant Integrity Control
Officer, Sergeant Weiss.

49.

(Pl.’s Consol. 56.1 Statement, ¶ 38.)

On August 31, 2009, a former member of the NYPD,

David Durk, reported that Schoolcraft was the victim of
retaliation by his supervisors.

(Pl.’s Consol. 56.1 Statement,

¶ 39.)

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50.

On September 2, 2009, 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.”

51.

(Pl.’s Consol. 56.1 Statement, ¶ 40.)

According to the IAB report, 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.”

(Pl.’s Consol. 56.1

Statement, ¶ 41.)

52.

On October 7, 2009, Schoolcraft met with

investigators from the NYPD’s Quality Assurance Division
(“QAD”).

At the meeting, Schoolcraft made assertions about the

nature of the alleged downgrading and suppression of major
crime reporting at the 81st Precinct.
Statement, ¶ 42.)

(Pl.’s Consol. 56.1

In a recorded conversation between

Schoolcraft and his father discussing the QAD meeting,
Schoolcraft stated that “this is the way to fuck [DI Mauriello]

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over.”
1.)

(Pl.’s Consol. 56.1 Statement Mauriello Countercl. ¶

At the actual meeting, Schoolcraft stated he was not

looking to “burn anyone” or “for vengeance,” and that “this
isn’t because I don’t like Inspector Mauriello, he is a jovial
guy.”

(Pl.’s Consol. 56.1 Statement Mauriello Countercl. ¶ 2.)

53.

While QAD undertook to conduct an investigation

into those allegations, it also referred Schoolcraft’s other
misconduct allegations to IAB.

(Pl.’s Consol. 56.1 Statement,

¶ 43.)

54.

During his recorded interviews with internal

investigators at the NYPD, Schoolcraft told NYPD investigators
that he was not reporting the alleged reporting abuses
anonymously.

55.

(City’s Consol. 56.1 Statement, ¶ 93.)

According to an IAB report, on September 2, 2009,

Schoolcraft told IAB that, “he doesn’t feel he is being
retaliated against from the Members of his Command and has no
problems with his supervisors and peers.”
56.1 Statement, ¶ 27.)

20

(Mauriello’s Consol.

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56.

In addition, towards the end of October, an 81st

Precinct Sergeant told DI Mauriello that QAD was calling down
officers and DI Mauriello called up an Inspector from QAD, who
confirmed that there was an investigation.

57.

Additionally, Captain Lauterborn testified that

he allegedly received complaints from other officers
interviewed by QAD that Schoolcraft was asking them questions
about their QAD interviews and informed DI Mauriello2 about
Schoolcraft’s alleged conduct.

(Pl.’s Consol. 56.1 Statement,

¶ 46.)

58.

Captain Lauterborn testified that he learned from

DI Mauriello of a QAD investigation of the 81st Precinct.
(Pl.’s Consol. 56.1 Statement, ¶ 45.)

59.

Captain Lauterborn testified that certain

supervisors at the 81st Precinct, including DI Mauriello,3 knew
that Schoolcraft’s memo book contained the name of an IAB
officer prior to October 31, 2009.

On October 19th Lieutenant

Caughey, as Integrity Control Officer, issued a written order
2

Mauriello denies knowledge of the QAD investigation prior to October 31,
2009. (See Pl.’s Consol. 56.1 Statement, ¶ 48.)

3

Mauriello denies knowledge of the QAD investigation prior to October 31,
2009. (See Pl.’s Consol. 56.1 Statement, ¶ 49.)

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to all officers in the command that all inquiries from IAB must
be reported to the Integrity Control Officer.

(Pl.’s Consol.

56.1 Statement, ¶ 49.)

F. October 31, 2009 – Schoolcraft’s Tour of Duty
60.

Schoolcraft recorded his entire tour of duty on

October 31, 2009.

61.

(Mauriello’s Consol. 56.1 Statement, ¶ 35.)

October 31, 2009 was the last day that

Schoolcraft reported to the 81st Precinct.

He worked the day

tour and conducted his regular duties at the Telephone
Switchboard desk before leaving work early.

(Pl.’s Consol.

56.1 Statement, ¶ 50.)

62.

In conversation with colleagues, Schoolcraft

stated, “look at what they did to me . . . they fucked me over
on my evaluation.”

Schoolcraft also said that he asked

supervisors to put it in writing to which they responded, “no,
go fuck yourself.

That’s your buddy Mauriello.”

Schoolcraft

then said “That’s your buddy Mauriello, that fat miserable
fuck.

If I could get him . . . . If I could get him, I would

fucking sell him out faster than anything, for free.

22

I would

Case 1:10-cv-06005-RWS Document 436 Filed 05/05/15 Page 27 of 206

give him away for free.”

(Pl.’s Consol. 56.1 Statement

Mauriello Countercl. ¶ 3.)

63.

During the course of the morning of October 31,

2009, Lieutenant Caughey took Schoolcraft’s memo book to
“scratch it,” i.e., to make a copy of it.

(Pl.’s Consol. 56.1

Statement, ¶ 51.)

64.

Schoolcraft’s recording of his entire day tour

does not reveal anything said to Schoolcraft by Lieutenant
Caughey other than a request to see his memo book so Caughey
could “scratch” it.

(Mauriello’s Consol. 56.1 Statement, ¶

62.)

65.

While in his office, Lieutenant Caughey made two

photocopies of the entire memo book because he saw “unusual”
entries in it. Lieutenant Caughey kept one copy for himself
and put the other copy in DI Mauriello’s office desk.

(Pl.’s

Consol. 56.1 Statement, ¶ 52.)

66.

Schoolcraft testified that, when Lieutenant

Caughey returned the memo book to Schoolcraft later that day,
Schoolcraft noticed, and became alarmed, that several pages of

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the memo book containing his entries about corruption or
misconduct were earmarked or folded down.

The City and DI

Mauriello dispute that several pages of the memo book
containing his entries about corruption or misconduct were
earmarked or folded down, and DI Mauriello disputes
characterization that pages reflected corruption or misconduct.
(Pl.’s Consol. 56.1 Statement, ¶ 57.)

Schoolcraft contends,

and City Defendants and DI Mauriello dispute, that Lieutenant
Caughey later started behaving in an unusual manner towards
Schoolcraft.

67.

(Pl.’s Consol. 56.1 Statement, ¶¶ 54-56.)

One of the civilian workers at the Precinct,

Police Administrative Aide (“PAA”) Curtis Boston (“PAA Boston”)
testified that she saw Lieutenant Caughey walk by Schoolcraft
that day in an unusual manner, and that twice during the course
of that morning, PAA Boston and Schoolcraft discussed
Lieutenant Caughey’s unusual behavior toward Schoolcraft.
(Pl.’s Consol. 56.1 Statement, ¶ 55.)

68.

PAA Boston testified that Schoolcraft told her

that he felt uncomfortable about Lieutenant Caughey’s behavior
and that Schoolcraft asked her to document her reasons for why
she believed Lieutenant Caughey was acting in a suspicious

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manner.

(Pl.’s Consol. 56.1 Statement, ¶ 56.)

69.

About one hour before the end of his scheduled

day, Schoolcraft told his supervisor, Sergeant Rasheena Huffman
(“Sergeant Huffman”) that he was not feeling well and was going
home.

70.

Schoolcraft also submitted a sick report to

Sergeant Huffman, which could have been a basis for Sergeant
Huffman authorizing him to take “administrative sick” for the
day.

(Pl.’s Consol. 56.1 Statement, ¶ 58.)

71.

As Schoolcraft was leaving the precinct, Sergeant

Huffman told Schoolcraft that he had the option of taking “lost
time,” but did not give him written approval for either lost
time or administrative sick time.

(Pl.’s Consol. 56.1

Statement, ¶ 59.)

72.

Sergeant Huffman called the NYPD centralized Sick

Desk to inquire whether Schoolcraft had called for permission
to leave work early, and was told he had not done so.
(Mauriello’s Consol. 56.1 Statement, ¶ 44.)

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73.

As Schoolcraft walked out of the precinct, DI

Mauriello was walking in and said hello to Schoolcraft.
(Mauriello’s Consol. 56.1 Statement, ¶ 41.)

G. October 31, 2009 – Events Subsequent to
Schoolcraft’s Departure
74.

Following Schoolcraft’s departure, Captain

Lauterborn contacted the NYPD sick desk supervisor.

(City’s

Consol. 56.1 Statement, ¶ 26.)

75.

After leaving work on October 31, 2009, at

approximately 2:30 p.m., Schoolcraft recorded conversations and
events in his apartment throughout the rest of that day until
the first entry was made by NYPD into his apartment at
approximately 9:40 p.m.

(Mauriello’s Consol. 56.1 Statement, ¶

36.)

76.

At about 3:30 p.m., Schoolcraft got home, which

was located at 82-60 Eighty-Eighth Place, Queens, New York, and
telephonically notified IAB of what Schoolcraft characterized
as Lieutenant Caughey’s menacing behavior.
Statement, ¶ 60.)

26

(Pl.’s Consol. 56.1

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77.

Schoolcraft specifically informed IAB that he

felt threatened, retaliated against, and in danger as a result
of what Schoolcraft characterized as Lieutenant Caughey’s
menacing behavior.

78.

(Pl.’s Consol. 56.1 Statement, ¶ 61.)

Shortly after Schoolcraft left the precinct, the

desk officer called Schoolcraft’s cell phone, but the calls
were not answered.

79.

(Mauriello’s Consol. 56.1 Statement, ¶ 45.)

The 104th Precinct was notified about

Schoolcraft’s status, and was asked to send an officer to his
home.

(Mauriello’s Consol. 56.1 Statement, ¶ 47.)

80.

About one hour later, at about 4:20 p.m., a

Sergeant Krohley, from the 104th Precinct, went to
Schoolcraft’s home with his driver.

Sergeant Krohley rang the

bell for 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 (“Stretmoyer”), who told him
that she believed that Schoolcraft had left about thirty
minutes before.

(Pl.’s Consol. 56.1 Statement, ¶ 62.)

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81.

Stretmoyer also informed Sergeant Krohley that

Schoolcraft had a car, which was parked on the street.
Sergeant Krohley determined that the car was registered in the
name of Schoolcraft’s father.

(Pl.’s Consol. 56.1 Statement, ¶

63.)

82.

On October 31, 2009, Captain Lauterborn was the

Executive Officer of the 81st Precinct, i.e., the position
below Commanding Officer in the chain of authority.
(Mauriello’s Consol. 56.1 Statement, ¶ 50.)

83.

On October 31, 2009, Captain Lauterborn was also

assigned for the day to be the PBBN Duty Captain, for the
entire Brooklyn North area.

(Declaration of Walter A. Kretz,

Jr. dated March 6, 2015, hereinafter “SM,” Ex. AB, Brooklyn
North Duty Sheet; Mauriello’s Consol. 56.1 Statement, ¶ 51.)

84.

At all relevant times, Deputy Chief Marino (now

retired) was the PBBN Assistant Chief, or second in command,
with supervisory authority over all of the precincts in PBBN,
including the 81st Precinct.

(Mauriello’s Consol. 56.1

Statement, ¶ 53.)

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85.

Defendant Lieutenant Christopher Broschart from

the 81st Precinct was instructed by Captain Lauterborn to go
with his driver to Schoolcraft’s apartment and check to see if
Schoolcraft had returned home.

(Mauriello’s Consol. 56.1

Statement, ¶ 46.)

86.

At about 5:00 p.m. Lieutenant Broschart arrived

at the scene, and Sergeant Krohley briefed Lieutenant Broschart
on the facts he had determined since arriving at the scene.
(Pl.’s Consol. 56.1 Statement, ¶ 64.)

87.

After Lieutenant Broschart and Captain Lauterborn

arrived at Schoolcraft’s home, they periodically knocked on the
door from the early afternoon until it was dark out.

(City’s

Consol. 56.1 Statement, ¶ 32.)

88.

Schoolcraft did not answer the door.

(City’s

Consol. 56.1 Statement, ¶ 33.)

89.

Lieutenant Broschart updated Captain Lauterborn

by telephone that Schoolcraft was not home and that Stretmoyer
had told him that Schoolcraft might have left.
56.1 Statement, ¶ 66.)

29

(Pl.’s Consol.

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90.

Captain Lauterborn told Lieutenant Broschart to

stand by and wait to see if Schoolcraft returned.

(Pl.’s

Consol. 56.1 Statement, ¶ 67.)

91.
Dr. Lamstein.

Later that evening, Captain Lauterborn spoke with
According to Dr. Lamstein’s notes of the call,

Captain Lauterborn told her that Schoolcraft left early that
day and the “underlying issue” was that Schoolcraft “has made
allegations against others” and the “dept’s investigation of
those allegations picked up this week & it snowballed from
there.”

(Pl.’s Consol. 56.1 Statement, ¶ 68.)

92.

Dr. Lamstein told Captain Lauterborn that she had

seen Schoolcraft a few days ago and that she “had no reason to
think [Schoolcraft] was a danger to himself or others.”

She

also stated that her “assessment of his suicide risk is only as
good as the last time [she] saw him.

If something happened

after that and led him to be so upset that he left work without
permission an hour before the end of his tour, said to have
stomach pains, etc., then [she is] unable to say with any
reasonable amount of certainty that he is not at risk of S/I
[suicidal ideation] under present circumstances.”

30

While Dr.

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Lamstein further testified that she thought the NYPD
“absolutely needed” to find Plaintiff and “make sure that he
was ok,” Plaintiff contends that her testimony implies she did
not so informed Captain Lauterborn, while City Defendants
contend she explicitly communicated this impression to Captain
Lauterborn.

(Pl.’s Consol. 56.1 Statement, ¶ 69; City’s

Consol. 56.1 Statement, ¶ 30.)

93.

Captain Lauterborn asked Dr. Lamstein to see if

she could try to reach Schoolcraft over the telephone.
(Mauriello’s Consol. 56.1 Statement, ¶ 70.)

94.

On October 31, 2009, Dr. Lamstein attempted to

contact Schoolcraft by calling him on his cell phone.

(City’s

Consol. 56.1 Statement, ¶ 34.)

95.

At about 7:40 p.m., after speaking with Dr.

Lamstein, Captain Lauterborn also called Schoolcraft’s father
and told him that Schoolcraft left without permission and had
to return to the 81st Precinct that night.

(Pl.’s Consol. 56.1

Statement, ¶ 70.)

96.

Schoolcraft listened to Dr. Lamstein’s message and

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recorded it.

97.

(Mauriello’s Consol. 56.1 Statement, ¶ 74.)

Dr. Lamstein’s message was as follows:

Hi Schoolcraft, Dr. Lamstein. I am the pager duty
psychologist today and I got a call from Captain
Lauterborn. I know I’m not the first call you’re
receiving so I’m sure you’re aware that they’re all
looking for you and very concerned because you ran off
without doing proper procedure and they’re not sure if
you’re OK.
So right now they are trying to figure out if they
supposed to do a whole city-wide high-level
mobilization to find you or if you’re OK and they’re
not sure if they are supposed to be doing that. So
there are other people who left you a message asking
you to return to the 8-1. I asked if it would also be
OK if you just returned to your home and to send a Lt.
there hoping to find you.
So I don’t know what to tell them because as long as
I’ve known you, I’ve had no concerns about you having
thoughts about hurting yourself, I really really want
to urge you to return to your home or call your Captain
or you can call me. Whatever this is, if you just
return to your home and just resolve whatever this is
quickly and easily otherwise it’s just going to blow up
to a bigger mess than you would want and I would really
really hate to see that happen. I would much rather
this, whatever this is, get reconciled very quickly and
easily without a whole big city wide mobilization and
suspensions and whatever else is being considered
because this is not necessary, it can be resolved in
two minutes.
[Gives phone numbers]. You can also just return home
and resolve it with you there instead of at the
precinct because I suggested that might be embarrassing
for you.
So hope everything is OK and please give me a call.
(Mauriello’s Consol. 56.1 Statement, ¶ 75.)
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98.
call.

Schoolcraft did not answer Dr. Lamstein’s phone

(City’s Consol. 56.1 Statement, ¶ 35.)

99.

Captain Lauterborn also spoke with Schoolcraft’s

father over the telephone.

Schoolcraft’s father told him that

he had spoken to Schoolcraft earlier that day, that his son
told him he felt sick with a “tummy ache” and was going home
and would call Schoolcraft’s father when Schoolcraft woke up.
(Pl.’s Consol. 56.1 Statement, ¶ 70.)

100.

Lauterborn told Schoolcraft’s father that he

needed to “physically talk to” Schoolcraft and “resolve things”
and the situation was not going to “wait until the morning.”
Captain Lauterborn insisted that he had to talk to Schoolcraft
“in person” and not “over the phone.”

He also stated that the

“situation [is] 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 is police all over it.”

If Schoolcraft was

there, Captain Lauterborn said that “we are eventually going to
make our way in.”

(Pl.’s Consol. 56.1 Statement, ¶ 72.)

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101.

Although Schoolcraft’s 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 Schoolcraft should report to the Lieutenant on the
scene outside his home.

(Pl.’s Consol. 56.1 Statement, ¶ 73.)

102. While alone in his apartment with NYPD personnel
gathered outside on the street, Schoolcraft spoke several times
over the telephone with his father, who was in upstate New
York.

(Mauriello’s Consol. 56.1 Statement, ¶ 68.)

103. Lieutenant Broschart remained outside of
Schoolcraft’s apartment for approximately four hours, and never
saw or heard Schoolcraft.
37.)

(City’s Consol. 56.1 Statement, ¶

Deputy Chief Marino believed that Schoolcraft was still

in his apartment.

(City’s Consol. 56.1 Statement, ¶ 38.)

104. Despite knowing that various persons were
attempting to reach him during that seven-hour period,
Schoolcraft did not respond to any of the telephone calls or to
the numerous knocks on his apartment door.
Consol. 56.1 Statement, ¶ 71.)

34

(Mauriello’s

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105. The City Defendants and Plaintiff disagree as to
the level of Assistant Chief Nelson’s involvement during this
time.

Plaintiff contends that DI Mauriello kept Assistant

Chief Nelson informed of the NYPD’s activities throughout the
evening, and understood the conduct to be in response to an
“AWOL officer,” i.e., and officer absent without leave.

(See

City’s Consol. 56.1 Statement, ¶ 58.)

106. Lieutenant Broschart, Captain Lauterborn, and DI
Mauriello were aware on October 31, 2009 that Schoolcraft’s gun
and shield had previously been removed from him.

(City’s

Consol. 56.1 Statement, ¶ 39.)

107. Prior to arriving at Schoolcraft’s apartment,
Captain Lauterborn was informed by Lieutenant Broschart that
Stretmoyer had heard creaking sounds from Schoolcraft’s
apartment, which was indication of activity in the apartment.
(Mauriello’s Consol. 56.1 Statement, ¶ 59.)

108. NYPD officers also noticed that Schoolcraft’s
television set was on.

(Jamaica’s Consol. 56.1 Statement, ¶

23.)

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109. At approximately 8:30 p.m., Captain Lauterborn and
Lieutenant Gough, Sergeant Duncan, and Sergeant Hawkins,
arrived at Schoolcraft’s residence.

(Mauriello’s Consol. 56.1

Statement, ¶ 58.)

110. Deputy Chief Marino directed that the NYPD
Operations division be notified and that arrangements be made
to have an Emergency Services Unit (“ESU”) also respond to
Schoolcraft’s residence.

(Mauriello’s Consol. 56.1 Statement,

¶ 55.)

111. The role of ESU is to provide specialized
assistance to other units of the NYPD.

(Mauriello’s Consol.

56.1 Statement, ¶ 56.)

112. An NYPD ESU crew was requested at 9:09 p.m.
(Mauriello’s Consol. 56.1 Statement, ¶ 63.)

113. Deputy Chief Marino, driving his own car, and DI
Mauriello, driven by Lieutenant Crawford, arrived at the scene
at approximately 9:30 p.m.

By the time Deputy Chief Marino

arrived, ESU had already arrived at Schoolcraft’s apartment.
(Mauriello’s Consol. 56.1 Statement, ¶ 64.)

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114. Deputy Chief Marino met with Captain Lauterborn
and ESU officers, Lieutenant Gough and Sergeant Duncan, who had
gathered at the 81st Precinct, in the precinct parking lot, as
they prepared to go to Schoolcraft’s apartment.

(Mauriello’s

Consol. 56.1 Statement, ¶ 54.)

H. October 31, 2009 – NYPD’s First Entry into
Schoolcraft’s Apartment
115. On October 31, 2009, Schoolcraft had a voiceactivated recorder in his bedroom.

(Mauriello’s Consol. 56.1

Statement, ¶ 78.)

116. The hidden recorder recorded every sound heard in
Schoolcraft’s bedroom on the evening of October 31, 2009.
(Mauriello’s Consol. 56.1 Statement, ¶ 79.)

117. Captain Lauterborn obtained a key to Schoolcraft’s
apartment from Stretmoyer.

(City’s Consol. 56.1 Statement, ¶

40; Mauriello’s Consol. 56.1 Statement, ¶ 65.)

118.

At 9:45 p.m. that night, after waiting

approximately four or five hours outside Schoolcraft’s home,

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the NYPD used Stretmoyer’s key to enter the apartment.

(Pl.’s

Consol. 56.1 Statement, ¶ 74.)

119.

Several supervisory NYPD officers, including

Deputy Chief Marino, DI Mauriello, Captain Lauterborn,
Lieutenant Broschart, and three members of the Brooklyn North
Investigation Unit, Lieutenant William Gough, Sergeant Kurt
Duncan, and Sergeant Raymond Hawkins, entered Schoolcraft’s
home without a warrant.

120.

(Pl.’s Consol. 56.1 Statement, ¶ 75.)

At the time of their entry, several 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 were waiting outside of Schoolcraft’s
apartment.

121.

(Pl.’s Consol. 56.1 Statement, ¶ 77.)

Also responding to the scene was FDNY Lieutenant

Elise Hanlon and two Jamaica Hospital Emergency Medical
Technicians (“EMTs”).

(Pl.’s Consol. 56.1 Statement, ¶ 78.)

Plaintiff contends that Lieutenant Hanlon testified that she
reported in connection with a “barricaded EDP,” while the 911

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operator listed the purpose of the EMT dispatch as “unknown
condition.”

122.

According to Deputy Chief Marino and DI

Mauriello, the warrantless entry into Schoolcraft’s home was
justified by their concerns for his “well-being.”

(Pl.’s

Consol. 56.1 Statement, ¶ 79.)

123.

Deputy Chief Marino testified that he had no

information that Schoolcraft had threatened to hurt himself or
others, though Mauriello contends that he only lacked
“specific” information and points to a portion of his testimony
where he states that he had been briefed about the events of
day and Schoolcraft’s “psychological history.”

(Pl.’s Consol.

56.1 Statement, ¶ 80.)

124.

Upon entry, the ESU officers moved into

Schoolcraft’s bedroom wearing bulletproof vests and helmets and
carrying tactical shields.

(Pl.’s Consol. 56.1 Statement, ¶

82.)
125. On the recording, ESU is heard knocking on the
apartment door and calling out “Adrian.”

As the door

apparently opens, a comment is made by one of the officers in a

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low voice, saying “He’s on the bed.”
officer asks “Is he alright?”

In response, another

(Mauriello’s Consol. 56.1

Statement, ¶ 80.)

126. The Emergency Services Unit officers moved into
Schoolcraft’s bedroom with their guns drawn.
disputes this statement.

127.

DI Mauriello

(Pl.’s Consol. 56.1 Statement, ¶ 82.)

Schoolcraft was awake lying on his bed.

(Pl.’s

Consol. 56.1 Statement, ¶ 83.)

128. The ESU officers then addressed Schoolcraft
directly, asking him to show his hands and asking him to assure
them he was OK.

There is no indication of any aggressive

conduct or the exertion of any physical force against
Schoolcraft.

129.

(Mauriello’s Consol. 56.1 Statement, ¶ 81.)

As reflected by the recording captured by

Schoolcraft’s voice-activated digital recorder, one of the ESU
officers asked Schoolcraft, “You okay?” to which Schoolcraft
replied, “Yeah, I think so.”

(Pl.’s Consol. 56.1 Statement, ¶

84.)

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130. Once entry was made into the apartment and
Schoolcraft appeared to be in reasonably good condition, Deputy
Chief Marino, then DI Mauriello, and then Captain Lauterborn
explained to him that he was being directed to return to the
precinct.

(Mauriello’s Consol. 56.1 Statement, ¶ 91.)

131.

The exchange between Deputy Chief Marino and

Schoolcraft was as follows:

Marino: Adrian, you didn’t hear us knocking on this door
for a couple hours?
Schoolcraft: I drank some Nyquil.
Unidentified male voice: Adrian, sit up.
Marino: Adrian, you didn’t hear us knocking on that door .
. . for the last couple hours?
Schoolcraft: No, why would I be expecting anyone knocking
at my door Chief?
Marino: I don’t know Adrian, but normally if you hear
someone knocking you get up and answer it. They were
kicking on that door loud and yelling.
Schoolcraft: I wasn’t feeling well.
Marino: You got a million people downstairs worried about
your welfare, spending hours out here, worried about you.
We’ve talked to your father, we’ve called your phone.
Schoolcraft: What did my father say?
Marino: I don’t know Adrian, I didn’t talk to him
personally. Alright, sit down.

(Mauriello’s Consol. 56.1 Statement, ¶ 82.)
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132. After speaking with Schoolcraft for less than a
minute, Deputy Chief Marino said “Steve,” indicating to DI
Mauriello that Deputy Chief Marino wanted him to step into the
bedroom and deal with the situation.

(Mauriello’s Consol. 56.1

Statement, ¶ 84.)

133. DI Mauriello ordered Schoolcraft to return to the
81st Precinct along with two officers – Sergeant Huffman and a
“Rodriguez” – who had witnessed his early departure from work
and were being detained at the precinct.

(Mauriello’s Consol.

56.1 Statement, ¶¶ 85, 92.)

134. The exchange between DI Mauriello and Schoolcraft,
lasting approximately forty-five seconds, was as follows:

Mauriello: Adrian, what happened today?
Adrian: I wasn’t feeling well, I left.
Mauriello: That’s it? You weren’t feeling well.
sergeant told you to stay, right?
Schoolcraft: No, she didn’t say anything.
talking on her cell phone.

Your

She was

Mauriello: You got everybody worried, we are worried
about your safety.
Schoolcraft: Worried about what?
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Mauriello: What do you mean, worried about what? They
tried calling you, everybody(s) been calling you.
Captain Lauterborn’s been calling, everyone has been
calling you, your father has been calling you. You’re
not answering. We were worried about anything that
happens. That’s what we are worried about. God
forbid. You just walk out of the precinct. I say
hello to you today that was the last I saw you. You
know, that’s what we are worried about, your safety,
your well-being.
Schoolcraft: Alright, I’m fine.
Mauriello: Well, you are going to come back to the
precinct with us.
Schoolcraft: Well . . . if I’m forced to.
against my will.

It’s

Mauriello: Against your will? OK Teddy [referring to
Captain Lauterborn], you handle this.

(Mauriello’s Consol. 56.1 Statement, ¶ 85.)

135. DI Mauriello did not have any physical contact
with Schoolcraft.

(Mauriello’s Consol. 56.1 Statement, ¶ 88.)

136. Captain Lauterborn then spoke with Schoolcraft
over the course of the next several minutes.

Their

conversation included the following exchange:

Lauterborn: Get your stuff on, we are going back to
the precinct.
Schoolcraft: I’m not going back to the precinct.

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Lauterborn: Adrian, we are going to go back to the
precinct.
Schoolcraft: For . . . ?
Lauterborn: Because we are going to do it the right
way. You can’t just walk out of the command.
Schoolcraft: And do what?
Lauterborn: You can’t just walk out of the command.
Schoolcraft: What’s going to be done if I go back to
the 8-1?
Lauterborn: What’s gonna be done? We are going to
investigate why you left.
Schoolcraft: I’m telling you why I left, I was feeling
sick.
Lauterborn: Adrian, that’s not the reason why you
leave. Alright, you know that. You just don’t put a
thing on a desk, you ask for permission.
Schoolcraft: I did ask permission.
Lauterborn: No you didn’t.
Schoolcraft: She denied it.
Lauterborn: Alright, so you can’t leave.
given permission.

You weren’t

Schoolcraft: Well . . . I wasn’t feeling well.
Lauterborn: She denied it, that’s it. You have to sit
there and wait until your permission is granted.
Alright, if it’s that bad then you’re gonna go to the
hospital from the precinct. You know better than to
just slap a sick report on a desk and walk out.
Schoolcraft: I didn’t do that. She embellished that I
. . . she was on the cell phone.

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Lauterborn: Alright, so then what did you do? Set it
down? She told you [that] you can’t leave and you
left anyway, right?
Schoolcraft: I was going sick.
Lauterborn: And you left anyway? She told you [that]
you can’t leave? Right. You can’t leave. That’s the
way it rolls. You can’t go. Alright? So we have to
go back. So get your clothes on, whatever you have to
do. People have been calling you all day, I talked to
your father. Alright?

(Mauriello’s Consol. 56.1 Statement, ¶ 89.)

137.

As reflected by the recording, Schoolcraft

refused to return to the Precinct.

After the colloquy with

Captain Lauterborn and Lieutenant Gough, Schoolcraft stated he
would go under protest.

(Pl.’s Consol. 56.1 Statement, ¶ 86.)

138. After agreeing to return the 81st Precinct,
Schoolcraft spoke on the phone with his father, then indicated
he did not feel well.

(Mauriello’s Consol. 56.1 Statement, ¶

98.)

139.

Schoolcraft stated that he had to sit down

because he was not feeling well and agreed to receive medical
attention.

(Pl.’s Consol. 56.1 Statement, ¶ 87.)

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140. Upon hearing that Schoolcraft was not feeling
well, NYPD officers offered Schoolcraft medical aid.
(Mauriello’s Consol. 56.1 Statement, ¶ 99.)

141. Jamaica Hospital EMT Salvatore Sangeniti has been
a trained EMT since 1980.

(City’s Consol. 56.1 Statement, ¶

46.)

142.

While Schoolcraft was being examined by EMT

Sangeniti, Deputy Chief Marino spoke with Schoolcraft about his
leaving the precinct and stated that Schoolcraft disobeyed an
order, and informed him that he was suspended.

(Pl.’s Consol.

56.1 Statement, ¶ 88.)

143.

Immediately following Deputy Chief Marino’s

statement that Schoolcraft would be suspended, EMT Sangeniti
measured Schoolcraft’s blood pressure.

When informed that his

pressure was high, Schoolcraft responded that he had been
feeling sick all day.

(Pl.’s Consol. 56.1 Statement, ¶ 89.)

144. Schoolcraft’s pulse was 120 beats per minute.
(City’s Consol. 56.1 Statement, ¶ 47.)

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145. Schoolcraft’s blood pressure was 160 over 120.
(City’s Consol. 56.1 Statement, ¶ 48.)

146. EMT Sangeniti told Lieutenant Hanlon that
Schoolcraft’s medical condition required medical attention at a
hospital.

(City’s Consol. 56.1 Statement, ¶ 37.)

147.
evaluation.

Schoolcraft agreed to go to the hospital for an
Medical personnel were recorded discussing Jamaica

Hospital and Forest Hills Hospital (also referred to as
LaGuardia) as potential options.

Schoolcraft stated that he

wanted to go to Forest Hills and EMT Sangeniti explained that
Jamaica Hospital would be better.
he wanted to go to Forest Hills.

Schoolcraft reiterated that
(Pl.’s Consol. 56.1

Statement, ¶ 90.)

148. A total of sixteen minutes had elapsed from the
time ESU first opened the door to the apartment until the
remaining officers and EMTs left the apartment with the
expectation the ambulance would take Schoolcraft to the
hospital for a medical exam.

(Mauriello’s Consol. 56.1

Statement, ¶ 104.)

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149. Schoolcraft walked out of the apartment and
approached the ambulance.

(Mauriello’s Consol. 56.1 Statement,

¶ 103.)

150. From a distance out on the street, DI Mauriello
saw Schoolcraft walk out of the house and toward the ambulance.
(Mauriello’s Consol. 56.1 Statement, ¶ 108.)

151.

Schoolcraft eventually refused further medical

attention and went back to his apartment.

(Pl.’s Consol. 56.1

Statement, ¶ 91.)

152. Schoolcraft did not suffer any physical harm
during the period DI Mauriello was in the apartment during the
first entry, and DI Mauriello is unaware of any such harm being
suffered by Schoolcraft any time during the remainder of the
first entry.

(Mauriello’s Consol. 56.1 Statement, ¶ 106.)

153. Defendants did not use any force against
Schoolcraft prior to the second entry.
56.1 Statement, ¶ 110.)

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(Mauriello’s Consol.

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154. The EMTs remained by the ambulance, and did not
enter Schoolcraft’s apartment again.

(Jamaica’s Consol. 56.1

Statement, ¶ 30.)

I. October 31, 2009 – NYPD’s Second Entry into
Schoolcraft’s Apartment
155.

As reflected in the second part of the recording

of the events in Schoolcraft’s home on October 31, 2009,
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 to the apartment and
again entered without permission.

(Pl.’s Consol. 56.1

Statement, ¶ 92.)

156. When Schoolcraft returned to his apartment, DI
Mauriello saw Chief Marino, Captain Lauterborn and Sergeant
Duncan, Sergeant Hawkins, and Lieutenant Gough, follow
Schoolcraft back inside.

(Mauriello’s Consol. 56.1 Statement,

¶ 103.)

157. DI Mauriello did not re-enter the apartment.
(Mauriello’s Consol. 56.1 Statement, ¶ 115.)

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158.

Deputy Chief Marino declared Schoolcraft an

“emotionally disturbed person” (also known as an “EDP”) and
Captain Lauterborn, Lieutenant Broschart, Lieutenant Gough and
Sergeant Duncan handcuffed Schoolcraft with his hands behind
his back.

(Pl.’s Consol. 56.1 Statement, ¶ 93.)

159. After Schoolcraft was declared an EDP, Deputy
Chief Marino was in charge at the scene as the highest ranking
NYPD officer present.

Prior to that declaration, Schoolcraft

disputes that Deputy Chief Marino was in charge.

(Mauriello’s

Consol. 56.1 Statement, ¶ 83.)

160.

While Schoolcraft was prone on the floor,

Lieutenant Broschart held down his shoulders and Captain
Lauterborn held him down by his legs.

All Defendants save the

City also admit that Deputy Chief Marino put his boot on
Schoolcraft’s face as he tried to turn his neck around to see
what was being done to his body.

(Pl.’s Consol. 56.1

Statement, ¶ 94.)

161. DI Mauriello did not arrest Schoolcraft, did not
direct anyone to arrest him, and was not present when, if ever,
he was placed under arrest.

However, Schoolcraft contends that

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DI Mauriello ordered his Executive Officer, Captain Lauterborn,
to “take care of this” when Schoolcraft refused to voluntarily
return to the 81st Precinct immediately, which was, Schoolcraft
contends, an order to bring Schoolcraft back to the precinct
involuntarily.

(Mauriello’s Consol. 56.1 Statement, ¶ 120.)

162. DI Mauriello was not present when Schoolcraft was
handcuffed, and he had not directed anyone to apply handcuffs.
(Mauriello’s Consol. 56.1 Statement, ¶ 117.)

163. DI Mauriello waited outside of the house until he
saw everyone exit the house with Schoolcraft being carried in a
chair to the ambulance.

(Mauriello’s Consol. 56.1 Statement, ¶

124.)

164. The entire time that elapsed from the time
Schoolcraft went back into his apartment until everyone left
the apartment was approximately fifteen minutes.

(Mauriello’s

Consol. 56.1 Statement, ¶ 125.)

165. DI Mauriello was not present when Schoolcraft was
suspended.

(Mauriello’s Consol. 56.1 Statement, ¶ 117.)

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166. DI Mauriello was not present when Schoolcraft was
declared an EDP.

(Mauriello’s Consol. 56.1 Statement, ¶ 119.)

167. DI Mauriello was not in Schoolcraft’s apartment
when all of the events allegedly occurred that form the basis
for Schoolcraft’s claims, whether for the remainder of the
first entry or during the second entry.

(Mauriello’s Consol.

56.1 Statement, ¶ 96.)

168. DI Mauriello did not know what had happened in the
apartment during the second entry, and he did not ever again
speak to or interact with Schoolcraft.

(Mauriello’s Consol.

56.1 Statement, ¶ 126.)

169.

Lieutenant Broschart rode in the back of the

ambulance with Schoolcraft.

(Pl.’s Consol. 56.1 Statement, ¶

96.)

170. While the NYPD officers were in Schoolcraft’s
apartment, they searched his person and his apartment and found
a voice-activated digital recorder belonging to Schoolcraft.
(Pl.’s Consol. 56.1 Statement, ¶ 97.)

171. DI Mauriello was not present for the removal of
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any of Schoolcraft’s personal property, including any alleged
removal of evidence Schoolcraft claims to have gathered of NYPD
corruption.

(Mauriello’s Consol. 56.1 Statement, ¶ 122.)

172. DI Mauriello did not direct anyone to remove any
property and did not direct or participate in the alleged
forcible removal of Schoolcraft from his apartment during the
second entry. (SM Ex. S, recording of first and second entries;
SM Ex. C, Mauriello Dep. pp. 376-81; Mauriello Affidavit ¶
123.)

173. There have been no substantiated incidents
involving any allegation that any physical force whatsoever was
used by Deputy Chief Marino in any incident.

Schoolcraft

contends that City Defendants successfully precluded inquiry on
this subject in discovery and should not be permitted to assert
this contention.

(City’s Consol. 56.1 Statement, ¶ 97.)

174. There are no substantiated allegations of unlawful
search or seizure, conspiracy, or retaliation against Deputy
Chief Marino, DI Mauriello, or Assistant Chief Nelson.
Schoolcraft contends that City Defendants successfully
precluded inquiry on this subject in discovery and should not

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be permitted to assert this contention.

(City’s Consol. 56.1

Statement, ¶ 98.)

J. Arrival at Jamaica Hospital
175.

Schoolcraft was taken to Jamaica Hospital’s

Emergency Room.

(Pl.’s Consol. 56.1 Statement, ¶ 98.)

176. Jamaica Hospital is a not-for-profit hospital.
(Jamaica’s Consol. 56.1 Statement, ¶ 2.)

177. In 2009, Jamaica Hospital had a mental health
clinic, a psychiatric emergency department, and two psychiatric
inpatient units.

(Jamaica’s Consol. 56.1 Statement, ¶ 3.)

178. Schoolcraft was held at Jamaica Hospital,
pretextually according to Schoolcraft, pursuant to New York
State Mental Hygiene Law Section 9.39 until November 6, 2009.
(City’s Consol. 56.1 Statement, ¶ 51.)

179.

Hospital medical records, or the “chart,” reflect

that Schoolcraft was in custody of the NYPD at the time he was
admitted.

(Pl.’s Consol. 56.1 Statement, ¶ 99.)

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180. Medical records state that “EMS said the patient
was behaving irrationally.”

(Jamaica’s Consol. 56.1 Statement,

¶ 37.)

181. Following Schoolcraft’s arrival at the Jamaica
Hospital Medical Emergency Department, he was triaged at
approximately 11:03 p.m.

(Jamaica’s Consol. 56.1 Statement, ¶

36.)

182.

Schoolcraft was handcuffed by one hand to a

gurney and under the custody of Lieutenant Broschart until the
Lieutenant was relieved at about midnight by Defendant Sergeant
Shantel James.
morning.

Sergeant James remained there until the

(Pl.’s Consol. 56.1 Statement, ¶ 100.)

183.

On November 1, 2009, Defendant Sergeant Frederick

Sawyer (“Sergeant Sawyer”), another supervisor from the 81st
Precinct, was sent to Jamaica Hospital to relieve Sergeant
James.

When Sergeant Sawyer got to the hospital, he saw

Schoolcraft on the telephone and, according to Sergeant Sawyer,
he ordered him to get off the telephone.
Statement, ¶ 101.)

55

(Pl.’s Consol. 56.1

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184.

Subsequently, Sergeant Sawyer, Sergeant James,

and two other officers forced Schoolcraft onto the gurney and
handcuffed his other hand to the gurney, leaving him in a fully
shackled position on the gurney.
Statement, ¶ 102.)

(Pl.’s Consol. 56.1

All parties save the City Defendants do not

deny that when Sergeant Sawyer applied the cuffs to
Schoolcraft, he used both hands to squeeze the cuffs tighter
and said “this is what happens to rats.”

(Pl.’s Consol. 56.1

Statement, ¶ 103.)

185. Schoolcraft was examined and laboratory tests were
taken.

In addition, a CT scan was ordered.

(Jamaica’s Consol.

56.1 Statement, ¶ 39.)

186. No physical problems were found, other than the
impression of handcuffs on both wrists.

(Jamaica’s Consol.

56.1 Statement, ¶ 40.)

187. At 12:03 a.m. on November 1, Dr. Silas Nwaishieny
examined Schoolcraft and requested a psychiatric consultation.
(Jamaica’s Consol. 56.1 Statement, ¶ 41.)

188.

In October and November 2009, non-party Dr. Khin

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Mar Lwin (“Dr. Lwin”) was a physician in the first year of her
residency at Jamaica Hospital.

(Jamaica’s Consol. 56.1

Statement, ¶ 6.)

189. Dr. Lwin performed the psychiatric consultation,
which had been requested because Schoolcraft had purportedly
been acting “bizarre.”

(Jamaica’s Consol. 56.1 Statement, ¶

42.)

190.

Schoolcraft, underwent the initial psychiatric

examination/assessment at approximately 6:30 a.m. on November
1, 2009.

(Bernier’s Consol. 56.1 Statement, ¶ 23.)

191. According to Dr. Lwin’s notes, Schoolcraft told
Dr. Lwin that he was “worried about the situation.”

He told

her that “this is happening” because he had been discussing the
internal affairs of the police department with his superiors
and the Police Commissioner, that his supervisors were hiding
information about robbery and assault cases to improve their
statistics for their own advancement, that he has
“documentation” about “this crime,” and that he has been
reporting his supervisors’ actions for the past year.
(Jamaica’s Consol. 56.1 Statement, ¶ 43.)

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192. Dr. Lwin’s note indicated that as per a Sergeant
James of the 81st Precinct, Schoolcraft complained about not
feeling well the prior afternoon and left work early after
becoming agitated and cursing a supervisor.
followed Schoolcraft to his home.

The police

Schoolcraft barricaded

himself in his apartment and the door had to be broken down to
get him.

Schoolcraft initially agreed to go with them for

evaluation, but once outside, he ran and had to be chased and
brought to the medical emergency room.

(Bernier’s Consol. 56.1

Statement, ¶ 24.)

193. The NYPD officers who remained with Schoolcraft at
that time informed Dr. Lwin of Schoolcraft’s history and the
events that occurred throughout October 31st, and said that that
Schoolcraft had left work early “after getting agitated and
cursing [his] supervisor.”

(Jamaica’s Consol. 56.1 Statement,

¶ 44.)

194. Dr. Lwin was also told that Schoolcraft had
“barricaded himself” in his apartment, which required the NYPD
to break the door down, and that Schoolcraft had initially
agreed to go to the Hospital for evaluation, but that once he

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was outside his house, he began to run, after which a chase
ensued, and he was brought to the Emergency Department (“ED”)
in handcuffs.

(Jamaica’s Consol. 56.1 Statement, ¶ 45.)

195. Dr. Lwin was also advised that Schoolcraft had
previously been evaluated by an NYPD psychologist and that as a
result, Schoolcraft had not carried a gun or a badge for almost
a year.

(Jamaica’s Consol. 56.1 Statement, ¶ 46; Bernier’s

Consol. 56.1 Statement, ¶ 25.)

196. Dr. Lwin noted that while Schoolcraft was in the
ED before Dr. Lwin saw him, Schoolcraft had become agitated,
uncooperative and verbally abusive due to a discussion about
using the telephone, and that he had told his treating
physician that “they are all against me.”

(Jamaica’s Consol.

56.1 Statement, ¶ 47.)

197. Dr. Lwin performed a mental status examination and
determined that Schoolcraft was coherent and relevant, with
goal-directed speech (Exhibit U, p. 5).
appropriate affect.

He was irritable with

(Jamaica’s Consol. 56.1 Statement, ¶ 48.)

198. Dr. Lwin noted that Schoolcraft denied suicidal

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and homicidal ideation, but that he was “paranoid about his
supervisors.”

(Jamaica’s Consol. 56.1 Statement, ¶ 49.)

199. Dr. Lwin noted that Schoolcraft’s memory and
concentration were intact, that he was alert and oriented, but
that his insight and judgment were, in Dr. Lwin’s estimation,
impaired.

(Jamaica’s Consol. 56.1 Statement, ¶ 50.)

200. Dr. Lwin diagnosed Schoolcraft with a Psychotic
Disorder, Not Otherwise Specified (“NOS”).

(Jamaica’s Consol.

56.1 Statement, ¶ 51.)

201. Dr. Lwin recommended continued one-to-one
observation due to Schoolcraft’s unpredictable behavior and
escape risk.

(Jamaica’s Consol. 56.1 Statement, ¶ 52.)

202. Dr. Lwin also recommended that Schoolcraft be
transferred to the Psychiatric Emergency Room for further
observation after he was medically cleared.

(Jamaica’s Consol.

56.1 Statement, ¶ 53.)

203. Schoolcraft testified that he had no complaints
with regard to the treatment rendered by Dr. Lwin.

60

(Jamaica’s

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Consol. 56.1 Statement, ¶ 55.)

204. Dr. Patel, a psychiatrist at Jamaica Hospital,
subsequently reviewed Dr. Lwin’s note and concurred with Dr.
Lwin’s findings.

(Bernier’s Consol. 56.1 Statement, ¶ 26.)

205. A Psychiatric Nursing Assessment Form was
completed in the Psychiatric Emergency Department on November
1, 2009 at 9:00 a.m.

(Jamaica’s Consol. 56.1 Statement, ¶ 65.)

206. Dr. Khwaja Khusro Tariq (“Dr. Tariq”), a resident
physician, performed a psychiatric evaluation in the
Psychiatric Emergency Department at 12:00 p.m.

(Jamaica’s

Consol. 56.1 Statement, ¶ 66.)

207. In the section marked chief complaints, Dr. Tariq
wrote “they just came to my place and handcuffed me” and that
according to the accompanying New York City Police Department
Officer (Sergeant James as per the ER consult note),
Schoolcraft had been acting bizarre.

(Bernier’s Consol. 56.1

Statement, ¶ 28.)

208. Hospital records state that Schoolcraft had been

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brought to the “ED” because he had been “deemed to be paranoid
and a danger to himself by his police sergeant.”
pp. 74-79).

(Exhibit U,

Contusions were noted on Schoolcraft’s arms, but

he was cooperative, with clear, spontaneous, and relevant
speech.

(Jamaica’s Consol. 56.1 Statement, ¶ 67.)

209. Dr. Tariq’s notes indicate that Schoolcraft had
been reporting irregularities at work to IAB for over a year,
that his supervisors had been under-reporting crime statistics
to advance their careers, that he had documentary proof
thereof, and that, as a result, he was being “persecuted.”
(Jamaica’s Consol. 56.1 Statement, ¶ 69.)

210. Dr. Tariq’s notes indicated that Sergeant James
stated that Schoolcraft had been acting bizarre, but Sergeant
James denied making that statement.

(Jamaica’s Consol. 56.1

Statement, ¶ 70.)

211. Dr. Tariq stated that Schoolcraft was cooperative,
but that he was angry, with constricted affect.

(Jamaica’s

Consol. 56.1 Statement, ¶ 71.)

212. Dr. Tariq noted that Schoolcraft had paranoid and

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persecutory delusions because he believed that he was being
persecuted for having reported his supervisors’ irregularities
and corruptive behavior.

(Jamaica’s Consol. 56.1 Statement, ¶

72.)

213. Dr. Tariq also determined that Schoolcraft had
poor insight and judgment.

(Jamaica’s Consol. 56.1 Statement,

¶ 73.)

214. Dr. Tariq diagnosed Schoolcraft as suffering from
Psychosis, NOS, Rule Out Schizophrenia, Paranoid Type.
(Jamaica’s Consol. 56.1 Statement, ¶ 74.)

215. At 1:40 p.m., Dr. Tariq wrote an Order for a head
CT to be performed.

(Jamaica’s Consol. 56.1 Statement, ¶ 75.)

216. It was noted that Schoolcraft had spoken with his
father on the telephone twice.

(Jamaica’s Consol. 56.1

Statement, ¶ 76.)

217. On November 2, 2009, non-party physician Dr. Heron
noted that Schoolcraft had been taken to the Hospital because
the NYPD thought he was paranoid and was a danger to himself.

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(Jamaica’s Consol. 56.1 Statement, ¶ 77.)

218. Schoolcraft’s head CT was read as normal, per the
“11/2/0910:45 a.m.” CT report.

(Jamaica’s Consol. 56.1

Statement, ¶ 78.)

219.

Later that morning, the two sets of handcuffs

were removed and Schoolcraft was wheeled into the Jamaica
Hospital Psychiatric Emergency Room for further observation
following a diagnosis of Psychotic Disorder, Not Otherwise
Specified (“NOS”).

220.

(Pl.’s Consol. 56.1 Statement, ¶ 104.)

After the paperwork was filled out, Schoolcraft

was taken from the Psychiatric Emergency Room to a psychiatric
ward in the hospital.

(Pl.’s Consol. 56.1 Statement, ¶ 107.)

221. A non-party physician, Dr. Slowik, examined
Schoolcraft on November 2, 2009, at 2:15 p.m.

(Bernier’s

Consol. 56.1 Statement, ¶ 29.)

222. Defendant Dr. Bernier is a physician duly licensed
to practice medicine in the State of New York.
Consol. 56.1 Statement, ¶ 20.)

64

(Bernier’s

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223. Dr. Bernier was privately employed in October and
November of 2009.

(Bernier’s Consol. 56.1 Statement, ¶ 22.)

224. In October and November of 2009, Dr. Bernier was
also an attending physician at Jamaica Hospital.

(Jamaica’s

Consol. 56.1 Statement, ¶ 4.)

225. In October and November of 2009, Dr. Bernier was
director of JHMC’s psychiatric emergency room.

(Bernier’s

Consol. 56.1 Statement, ¶ 21.)

226. Dr. Bernier took over Schoolcraft’s care as the
attending psychiatrist while he was in the Psychiatric
Emergency Department, prior to his admission to the psychiatric
unit.

(Jamaica’s Consol. 56.1 Statement, ¶ 79.)

227. Prior to purportedly examining Schoolcraft, Dr.
Bernier reviewed the notes created by prior treating physicians
and nurses, including, but not limited to, Dr. Lwin, Dr. Patel,
Dr. Tariq and Dr. Slowick.

(Bernier’s Consol. 56.1 Statement,

¶ 31.)

228. Dr. Bernier’s notes suggest that she examined
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Schoolcraft at Jamaica Hospital on November 2, 2009, at
approximately 3:10 pm, but Schoolcraft denies she actually
examined him.

(Bernier’s Consol. 56.1 Statement, ¶ 30.)

229. Dr. Bernier sought a second opinion from Dr. Dhar
concerning Schoolcraft.

(Bernier’s Consol. 56.1 Statement, ¶

33.)

230. Dr. Bernier was not directly told by anyone from
the NYPD, or anyone acting on their behalf, to keep Schoolcraft
at Jamaica Hospital against his will.

Schoolcraft contends

that she reviewed Schoolcraft’s hospital file which indicated
the NYPD’s wish to keep Schoolcraft in the hospital.
(Bernier’s Consol. 56.1 Statement, ¶ 34.)

231. Dr. Bernier never spoke with the Sergeant James,
or any other officer, who is identified in the notes of prior
treating physicians.

(Bernier’s Consol. 56.1 Statement, ¶ 35.)

232. Dr. Bernier never spoke with any police officer
concerning Schoolcraft.

(Bernier’s Consol. 56.1 Statement, ¶

36.)

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233. Dr. Bernier never spoke with Dr. Lamstein
concerning Schoolcraft.

(Bernier’s Consol. 56.1 Statement, ¶

37.)

234. Dr. Bernier never falsified any medical records
concerning Schoolcraft.

(Bernier’s Consol. 56.1 Statement, ¶

42.)

235. As Schoolcraft’s attending, Dr. Bernier supervised
the residents who evaluated Schoolcraft in the Psychiatric
Emergency Room prior to admission, and she had the ultimate
responsibility to care for Schoolcraft during her shift.
(Jamaica’s Consol. 56.1 Statement, ¶ 80.)

236.

On November 3, 2009 at 8:54 a.m., Dr. Bernier

ordered Schoolcraft’s involuntary hospitalization.

(Pl.’s

Consol. 56.1 Statement, ¶ 105.)

237. Dr. Bernier determined that Schoolcraft was a
danger to himself because he was psychotic and paranoid, and
would benefit from in-patient stabilization.

Schoolcraft

contends that her determination was not bona fide as it was not
based on her own examination.

(Jamaica’s Consol. 56.1

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Statement, ¶ 81.)

238. Dr. Bernier indicated that she agreed with the
previous evaluation by resident Dr. Tariq.

(Jamaica’s Consol.

56.1 Statement, ¶ 82.)

239. Dr. Bernier made the decision to admit the patient
to the psychiatric unit of Jamaica Hospital.

(Jamaica’s

Consol. 56.1 Statement, ¶ 84.)

240. On November 3, 2009 at 1:20 p.m., Dr. Bernier
completed the Emergency Admission Form mandated by Mental
Hygiene Law §9.39.

(Jamaica’s Consol. 56.1 Statement, ¶ 83;

Isakov’s Consol. 56.1 Statement, ¶ 3.)

241. The Policies and Procedures regarding restraints
are from the Policy and Procedure Manual from the Psychiatric
Emergency Department of Jamaica Hospital.

(Jamaica’s Consol.

56.1 Statement, ¶ 109.)

242. The written policy regarding the criteria for
involuntary hospitalization is identical to the language in the
Mental Hygiene Law.

(Jamaica’s Consol. 56.1 Statement, ¶ 111.)

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243. Dr. Bernier provided Schoolcraft with written
notice of his status and rights as an admitted patient on
November 3, 2009.

(Jamaica’s Consol. 56.1 Statement, ¶ 85.)

244. In October and November of 2009, Dr. Isakov was an
attending physician at Jamaica Hospital.

(Jamaica’s Consol.

56.1 Statement, ¶ 5.)

245.

On November 4, 2009, Dr. Isakov confirmed Dr.

Bernier’s decision to involuntarily hospitalize Schoolcraft.
(Pl.’s Consol. 56.1 Statement, ¶ 108.)

246. On November 4, 2009, Dr. Isakov co-signed the
Emergency Admission Form that was previously completed by Dr.
Bernier.

(Jamaica’s Consol. 56.1 Statement, ¶ 86; Isakov’s

Consol. 56.1 Statement, ¶ 4.)

247. Dr. Isakov also wrote the psychiatric admission
note on November 4, 2009.

(Jamaica’s Consol. 56.1 Statement, ¶

87.)

248. IAB visited Schoolcraft twice while he was in
Jamaica Hospital.

(Mauriello’s Consol. 56.1 Statement, ¶ 136.)
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249. Dr. Isakov was at a family meeting with
Schoolcraft and Schoolcraft’s father (“Family Meeting”).
Present at the Family Meeting was an officer from the IAB, who
Schoolcraft had requested attend, and a licensed mental health
social worker, Colleen McMahon.

(Isakov’s Consol. 56.1

Statement, ¶ 7; Jamaica’s Consol. 56.1 Statement, ¶ 88.)

250. The Family Meeting was tape recorded.

(Isakov

Aff. 11.) The IAB officer did not request, pressure or
influence Dr. Isakov’s independent medical judgment concerning
Schoolcraft.

(Isakov’s Consol. 56.1 Statement, ¶ 8.)

251. Dr. Isakov requested permission from Schoolcraft
to obtain a copy of his prior records from the police
psychologist who had ordered taking his gun away.
was denied by Schoolcraft.

That request

(Isakov’s Consol. 56.1 Statement, ¶

9.)

252. Dr. Isakov noted that Schoolcraft told him that he
had not been happy with how the police department was being run
since his career started, that he had made multiple complaints
which had not been addressed, and that, instead, he was

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“declared” emotionally “unstable.”

(Jamaica’s Consol. 56.1

Statement, ¶ 89.)

253. Dr. Isakov’s notes indicate that Schoolcraft told
Dr. Isakov that his gun had been taken away from him after a
psychiatric evaluation was performed by an NYPD psychologist,
and that, since then, he has started to collect the “evidence”
to “prove his point,” but then he became suspicious that “they
are after him.”

(Jamaica’s Consol. 56.1 Statement, ¶ 90.)

254. Dr. Isakov’s notes indicate that Dr. Isakov found
Schoolcraft to be suspicious, guarded, restless, and noted that
Schoolcraft demanded to be discharged.

Schoolcraft contends

that this was not Dr. Isakov’s genuine belief.

(Jamaica’s

Consol. 56.1 Statement, ¶ 91.)

255. Dr. Isakov’s notes indicate that Schoolcraft
denied suicidal and homicidal ideation, but Dr. Isakov noted
that Schoolcraft expressed questionably paranoid ideas about
conspiracies and cover-ups in his precinct.

Schoolcraft

contends that this was not Dr. Isakov’s genuine belief.
(Jamaica’s Consol. 56.1 Statement, ¶ 92.)

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256. Dr. Isakov noted that Schoolcraft’s cognition and
memory were intact, but that his judgment and insight were
limited.

Schoolcraft contends that this was not Dr. Isakov’s

genuine belief.

(Jamaica’s Consol. 56.1 Statement, ¶ 93.)

257. Dr. Isakov’s diagnosis was Psychosis NOS, Rule Out
Adjustment Disorder with Anxiety.

Schoolcraft contends that

this was not Dr. Isakov’s genuine belief.

(Exhibit U, p. 95;

Pl.’s R. 56.1 Responsive Statement p. 83, ¶ 94).

258. On November 5, 2009, Dr. Isakov performed an
evaluation of Schoolcraft, which Schoolcraft contends was
unnecessary and not properly performed.

(Jamaica’s Consol.

56.1 Statement, ¶ 95.)

259. Dr. Isakov noted that although Schoolcraft
“reiterated his story” and still wanted “to take steps/action
against his precinct,” he did not express any physical threats
to anyone.

(Jamaica’s Consol. 56.1 Statement, ¶ 96.)

260. Dr. Isakov’s notes indicate that Schoolcraft
refused to give permission for anyone at Jamaica Hospital to
speak with the police psychiatrist who had previously evaluated

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him, but agreed to see a psychotherapist after he was
discharged.

(Jamaica’s Consol. 56.1 Statement, ¶ 97.)

261. On November 6, 2009, Dr. Isakov performed an
evaluation of Schoolcraft, which Schoolcraft contends was
unnecessary and not properly performed.

(Jamaica’s Consol.

56.1 Statement, ¶ 98.)

262. Dr. Isakov noted that Schoolcraft was compliant,
was not in emotional distress, and was not expressing any
paranoid ideation or making any threats.

(Jamaica’s Consol.

56.1 Statement, ¶ 99.)

263. Dr. Isakov indicated that Schoolcraft would be
discharged after an appointment was made with an outside
psychiatrist.

(Jamaica’s Consol. 56.1 Statement, ¶ 100.)

264. Dr. Isakov composed Schoolcraft’s Discharge
Summary.

(Jamaica’s Consol. 56.1 Statement, ¶ 101.)

265. Dr. Isakov’s discharge diagnosis was Adjustment
Disorder with Anxious Mood.

(Jamaica’s Consol. 56.1 Statement,

¶ 103.)

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266. Dr. Isakov discharged Schoolcraft with a
recommendation to follow up with a psychotherapist and, if he
became symptomatic, to see a psychiatrist for medication.
Schoolcraft contends that Dr. Isakov illegally conditioned
release on Schoolcraft’s agreeing to see a psychiatrist.
(Jamaica’s Consol. 56.1 Statement, ¶ 102.)

267. Dr. Isakov’s notes indicate that Schoolcraft
verbalized an understanding of the recommendation that
Schoolcraft consult with a psychiatrist once discharged.
(Jamaica’s Consol. 56.1 Statement, ¶ 104.)

268. On November 6, 2009, Jamaica Hospital released
Schoolcraft from its custody.

(Pl.’s Consol. 56.1 Statement, ¶

112.)

269. There is no direct evidence that Deputy Chief
Michael Marino spoke to any personnel from Jamaica Hospital,
beyond the EMTs that arrived at Schoolcraft’s home on October
31st.

(Jamaica’s Consol. 56.1 Statement, ¶ 100.)

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270. There is no direct evidence that Captain
Lauterborn spoke to any personnel from Jamaica Hospital, beyond
the EMTs that arrived at Schoolcraft’s home on October 31st.
(Jamaica’s Consol. 56.1 Statement, ¶ 113.)

271. There is no direct evidence that Lieutenant
Caughey spoke to any personnel from Jamaica Hospital.
(Jamaica’s Consol. 56.1 Statement, ¶ 114.)

272. There is no direct evidence that DI Mauriello
spoke to any personnel from Jamaica Hospital, beyond the EMTs
that arrived at Schoolcraft’s home on October 31st.

(Jamaica’s

Consol. 56.1 Statement, ¶ 115.)

273. There is no direct evidence that Sergeant Huffman
spoke to anyone at Jamaica Hospital regarding Schoolcraft.
(Jamaica’s Consol. 56.1 Statement, ¶ 116.)

274. There is no direct evidence that Lieutenant Hanlon
spoke to anyone at Jamaica Hospital regarding Schoolcraft.
(Jamaica’s Consol. 56.1 Statement, ¶ 117.)

275. There is no direct evidence that Captain Trainer

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spoke to anyone at Jamaica Hospital about Schoolcraft.
(Jamaica’s Consol. 56.1 Statement, ¶ 118.)

276. There is no direct evidence that Lieutenant Gough
spoke with anyone at Jamaica Hospital regarding Schoolcraft,
beyond the EMTs that arrived at Schoolcraft’s home on October
31st.

(Jamaica’s Consol. 56.1 Statement, ¶ 119.)

277. Sergeant Weiss never went to Jamaica Hospital and
never directed anyone to say anything to anyone at Jamaica
Hospital.

(Jamaica’s Consol. 56.1 Statement, ¶ 120.)

278. There is no direct evidence that Sergeant Duncan
had any contact with anyone at Jamaica Hospital, beyond the
EMTs that arrived at Schoolcraft’s home on October 31st.
(Jamaica’s Consol. 56.1 Statement, ¶ 121.)

279. Lieutenant Broschart testified that until a
physician evaluated Schoolcraft, he was in police custody.
(Jamaica’s Consol. 56.1 Statement, ¶ 123.)

280. Sergeant James denied having any contact with
anyone at Jamaica Hospital.

(Jamaica’s Consol. 56.1 Statement,

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¶ 124.)

281. Dr. Roy Lubit (“Dr. Lubit”) has been retained by
Schoolcraft as a psychiatric expert.

Pursuant to his

retention, Dr. Lubit issued an expert report.

(Bernier’s

Consol. 56.1 Statement, ¶ 43.)

282. In his report, Dr. Lubit claims Dr. Bernier
committed malpractice, in part, due to her failure to gather
information about Mr. Schoolcraft, including speaking with IAB
and other key collaterals such as the police.

(Bernier’s

Consol. 56.1 Statement, ¶ 44.)

K. Events Subsequent to Release from Jamaica Hospital
283. Schoolcraft was re-suspended for refusing to
return to work after he was released from JHMC on November 6,
2009.

(City’s Consol. 56.1 Statement, ¶ 71.)

284. After his discharge, Schoolcraft consulted with
Dr. Steven Luell (“Dr. Luell”), a private physician.
(Jamaica’s Consol. 56.1 Statement, ¶ 105.)

285. According to Dr. Luell’s report, Schoolcraft

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complained of stomach distress, anxiety, difficulty relaxing
and insomnia, and his mood was depressed.

(Jamaica’s Consol.

56.1 Statement, ¶ 106.)

286. Dr. Luell diagnosed Schoolcraft with Adjustment
Disorder with Mixed Emotional Features, Rule Out Obsessive
Compulsive Personality Disorder, and recommended that
Schoolcraft undergo a comprehensive psychiatric evaluation and
counseling.

(Jamaica’s Consol. 56.1 Statement, ¶ 107.)

287. Schoolcraft did not follow those recommendations.
(Jamaica’s Consol. 56.1 Statement, ¶ 108.)

288. Schoolcraft met with NYPD representatives from IAB
in his Queens apartment on November 6, 2009.

(Mauriello’s

Consol. 56.1 Statement, ¶ 137.)

289. At the meeting with IAB, Schoolcraft recounted the
events of October 31, 2009.

(Mauriello’s Consol. 56.1

Statement, ¶ 138.)

290. Schoolcraft provided the IAB officers with the
recordings he had made of the events in his apartment on

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October 31, 2009.

(Mauriello’s Consol. 56.1 Statement, ¶ 139.)

291. Following the IAB meeting in his Queens apartment,
Schoolcraft was contacted by IAB and told IAB wanted to revisit his apartment.

They met again on November 9, 2009,

together with Schoolcraft’s father.

(Mauriello’s Consol. 56.1

Statement, ¶ 140.)

292. The IAB officers discussed the existence of a
weapon in the apartment.

IAB had learned of the weapon from

the recording of the two NYPD entries on October 31, 2009, in
which Schoolcraft discusses the weapon with his father and they
agree he should hide it under his mattress before the NYPD
makes its first entry.

After denying there were any weapons on

the premises, Schoolcraft ultimately acknowledged he had a
weapon.

(Mauriello’s Consol. 56.1 Statement, ¶ 141.)

293. Schoolcraft turned the shotgun over to IAB.
(Mauriello’s Consol. 56.1 Statement, ¶ 142.)

294. After Schoolcraft was released from Jamaica
Hospital, he moved to Johnstown, New York.
Statement, ¶ 113.)

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295. In December 2009, the NYPD’s Brooklyn North
Investigations Unit (“BNIU”) made its first attempt to contact
Schoolcraft upstate (SAC ¶ 216), and continued to do so
thereafter.

(Mauriello’s Consol. 56.1 Statement, ¶ 144.)

296. According to DI Mauriello, at no time did BNIU or
IAB inform DI Mauriello of their actions or seek to consult
with him in any way about their efforts to contact Schoolcraft.
(Mauriello’s Consol. 56.1 Statement, ¶ 147.)

297. Schoolcraft chose not to speak with the visiting
NYPD personnel.

It thus became clear he had no interest in

communicating further with the NYPD.

(Mauriello’s Consol. 56.1

Statement, ¶ 146.)

298. Schoolcraft did not attend any disciplinary
hearing for disclosing or attempting to disclose NYPD
corruption and police misconduct.

(City’s Consol. 56.1

Statement, ¶ 101.)

299. Schoolcraft decided after his October 31, 2009
involuntary commitment to go to the media.

80

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56.1 Statement, ¶ 72.)

300. Schoolcraft contends that Brooklyn North
Investigations Unit officers were sent to Officer Schoolcraft’s
Johnstown residence on eight separate occasions, while the City
Defendants contend that they visited six times.

Schoolcraft

further contends that Captain Timothy Trainer (“Captain
Trainer”) also arranged for the local police on four occasions
to “visit” Schoolcraft’s upstate home.

The parties agree that

Schoolcraft opened the door of his upstate home only once to
accept an NYPD delivery.

(City’s Consol. 56.1 Statement, ¶¶

63, 65.)

301. In January 2010 and in February 2010, Lieutenant
Gough and Sergeant Duncan traveled with others north over 200
miles to his home to deliver papers to him.

(Pl.’s Consol.

56.1 Statement, ¶ 114.)

302. According to Schoolcraft, the Defendants’
purported visits to his upstate residence spurred him to speak
to the media.

(See citations in City’s Consol. 56.1 Statement,

¶ 83.)

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303. A Daily News reporter contacted Schoolcraft within
a month after Schoolcraft’s suspension.

(City’s Consol. 56.1

Statement, ¶76.)

304. Schoolcraft corresponded with reporters and
attorneys via e-mail for “a couple years” beginning in 2010.
(City’s Consol. 56.1 Statement, ¶ 77.)

305. Schoolcraft spoke numerous times with The Daily
News, This American Life, and The Village Voice in late 2009
and/or early 2010 through 2012.

(City’s Consol. 56.1

Statement, ¶ 78.)

306. Schoolcraft wrote a summary of his JHMC
confinement and provided that summary to The Village Voice, The
Daily News, and his various attorneys.

(City’s Consol. 56.1

Statement, ¶ 79.)

307. Schoolcraft began communicating with The Village
Voice reporter Graham Rayman (“Rayman”) in early 2010 and
continued to communicate with him through the summer of 2012.
(City’s Consol. 56.1 Statement, ¶ 80.)

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308. Schoolcraft gave copies of recordings of
individuals within his command to Rayman and Schoolcraft’s
attorneys.

(City’s Consol. 56.1 Statement, ¶ 81.)

309. Schoolcraft spoke with Rayman “a couple dozen
times” from early 2010 through 2012.

(City’s Consol. 56.1

Statement, ¶ 83.)

310. As of October 2012, Schoolcraft had given at least
six or seven interviews to the media.

(City’s Consol. 56.1

Statement, ¶ 84.)

311. Schoolcraft contacted State Senator Hugh T. Farley
in 2010.

(City’s Consol. 56.1 Statement, ¶ 85.)

312. Schoolcraft contacted New York City Councilman
Albert Vann in 2010.

(City’s Consol. 56.1 Statement, ¶ 86.)

313. Schoolcraft contacted New York City Councilman
Peter Vallone in 2010.

(City’s Consol. 56.1 Statement, ¶ 87.)

314. Schoolcraft contacted the Queens District Attorney
in late 2009 or early 2010.

(City’s Consol. 56.1 Statement, ¶

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88.)

315. Schoolcraft contacted the United States Department
of Justice.

(City’s Consol. 56.1 Statement, ¶ 89.).

316. Schoolcraft contacted plaintiff’s counsel in a
stop-and-frisk case recently tried before the Honorable Shira
A. Scheindlin, Floyd v. City of New York, 08 CV 1034 (SAS), and
provided supporting affidavits.

(City’s Consol. 56.1

Statement, ¶ 90.)

317.

DI Mauriello was a witnesses in Floyd.

During

his testimony, DI Mauriello stated that after the quota
allegations were made against him as the commanding officer of
the 81st Precinct, he was transferred to become the Executive
Officer of Transit Borough Brooklyn and Queens on July 3, 2010.
According to DI Mauriello’s testimony, 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.”

However, Mauriello contends that the Chief of

Patrol’s comments constituted a conciliatory gesture given
Mauriello’s disappointment with the transfer, rather than a

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statement suggesting that the transfer was a reward.

(Pl.’s

Consol. 56.1 Statement, ¶ 115.)

318.

DI Mauriello considered the transfer to Executive

Officer in Transit to be a position as “second commander to
more officers.”

319.

(Pl.’s Consol. 56.1 Statement, ¶ 116.)

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.

(Pl.’s

Consol. 56.1 Statement, ¶ 119.)

320.

In addition, according to DI Mauriello, Deputy

Chief Marino and the thirty-five other supervisors in the room
told DI Mauriello that they supported him.

(Pl.’s Consol. 56.1

Statement, ¶ 120.)

321.

DI Mauriello testified that he had discussions in

the summer of 2011 with his now-retired supervisor, Transit

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Bureau Chief Diaz, and 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.” (Pl.’s Consol. 56.1 Statement, ¶ 122.)

322.

All parties save DI Mauriello do not dispute that

DI Mauriello has not suffered any damage to his status at the
NYPD as a result of Schoolcraft’s actions.

(Pl.’s Consol. 56.1

Statement, ¶ 118.)

323.

After October 31, 2009, IAB began an

investigation into whether DI Mauriello knew about or suspected
at the time of his entry into Schoolcraft’s home that IAB or
QAD was investigating the 81st Precinct.

IAB also investigated

whether DI Mauriello knew about the contents of Schoolcraft’s
memo book at the time he entered the apartment.

(Pl.’s Consol.

56.1 Statement, ¶ 126.)

324.

IAB has recommended that formal charges against

DI Mauriello be filed, and those charges are still pending.
(Pl.’s Consol. 56.1 Statement, ¶ 128.)

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325.

In 2010, QAD issued a report on its

investigation, stating: “In summary, although some upgrades
were made during the course of 2008 and 2009, the findings
illustrate severe deficiencies in the overall crime reporting
process as a whole beginning with the initial interaction of
complainants attempting to file reports, the supervisor’s
review and finalization of the reports submitted and continuing
with inordinate delay in changing, improper classifications.
These conclusions, coupled with the significant amount of
reports found not to have been entered into the Omni-System is
disturbing.”

(Pl.’s Consol. 56.1 Statement, ¶ 129.)

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III.

APPLICABLE STANDARD
Summary judgment is appropriate only where “there is

no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.”
Civ. P. 56(c).

Fed. R.

A dispute is “genuine” if “the evidence is such

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

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

The relevant inquiry on application for summary

judgment is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
at 251–52.

Id.

A court is not charged with weighing the evidence

and determining its truth, but with determining whether there is
a genuine issue for trial.

Westinghouse Elec. Corp. v. N.Y.

City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)
(quoting Anderson, 477 U.S. at 249).

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IV.

CONSTITUTIONAL LAW CLAIMS RELATING TO CITY DEFENDANTS AND
DI MAURIELLO

A.

Fourth Amendment Claims Survive Summary Judgment

Plaintiff and City Defendants4 both seek judgment as a
matter of law with respect to Schoolcraft’s Fourth Amendment
claims relating to the NYPD’s October 31st warrantless entry into
Schoolcraft’s home, the subsequent search and seizure of his
apartment, and forcible removal of Schoolcraft from his
apartment after classifying him as an Emotionally Disturbed
Person.

See generally Pl.’s Mem. in Supp’t 34-44; City Defs.’

Mem. in Supp’t 1-6.

i. NYPD’s Initial Entry into Schoolcraft’s Home
As the Supreme Court has repeatedly instructed,
warrantless entry inside a home is permitted only under exigent
circumstances.

See Georgia v. Randolph, 547 U.S. 103, 109

(2006) (warrantless entry per se unreasonable); Payton v. New
York, 445 U.S. 573, 586, (1980) (same); Coolidge v. New
Hampshire, 403 U.S. 443, 477-78 (1971) (same); see also Terry v.
Ohio, 392 U.S. 1, 39 n.4 (1968) (warrantless search per se
unreasonable); United States v. Martino, 664 F.2d 860, 869 (2d
4

Mauriello joins City Defendants on this point of law, and the determinations
below therefore apply equally to him. See Mauriello Mem. in Opp’n 27-28.

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Cir. 1981).

One category of exigent circumstances, at issue in

this case, relates to instances where entry is reasonably
believed necessary to “render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006);
Minnesota v. Olson, 495 U.S. 91, 100 (1990); Tierney v.
Davidson, 133 F.3d 189, 196 (2d Cir. 1998).

“[D]etermination of

exigent circumstances is an objective one based on the totality
of the circumstances confronting law enforcement agents.”
United States v. MacDonald, 916 F.2d 766, 772 (2d Cir. 1990);
see also Tierney, 133 F.3d at 196.

Courts consider “the facts,

as they appeared at the moment of entry, would lead a
reasonable, experienced officer, to believe that there was an
urgent need to render aid or take action.”

United States v.

Simmons, 661 F.3d 151, 157 (2d Cir. 2011) (internal quotations
and citations omitted).

In this case, City Defendants contend Dr. Lamstein
informed Captain Lauterborn that he “‘absolutely needed’ to find
Plaintiff and ‘make sure that he was ok,’” thus satisfying the
objective reasonableness of entry under the emergency aid
doctrine as a matter of law.
Defs.’ Mem. in Supp’t 3.

City Defs.’ Mem. in Opp’n 7; City

However, whether Dr. Lamstein actually

made this statement to Captain Lauterborn is plainly in dispute.
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See Section II of this Opinion (hereinafter “Facts”) ¶ 92; see
also Pl.’s Reply Mem. 24; Pl.’s Mem. in Opp’n 2-6.

Contrary to

the City Defendants’ position, Dr. Lamstein’s deposition
transcript does not establish that she made those statements,
and her affidavit offered as part of the City Defendants’ reply
to their summary judgment motion does not render this issue
indisputable.

Dr. Lamstein’s recollection and her earlier

deposition testimony arguably conflict.

Therefore, Dr.

Lamstein’s warning cannot serve as a basis for City Defendants’
motion for summary judgment dismissing Schoolcraft’s Fourth
Amendment claim.

In support of his motion for summary judgment on the
same issue, Schoolcraft contends that, even if the conversation
between Dr. Lamstein and Captain Lauterborn took place as City
Defendants contend, the record establishes that Deputy Chief
Marino was not actually made aware of this conversation.
¶ 123; Pl.’s Reply Mem. 25-26.

Facts

The City Defendants counter that

under the collective or imputed knowledge doctrine, which
permits an officer to conduct a warrantless search or seizure
based upon a colleague’s objectively reasonable belief of
exigent circumstances, Dr. Lamstein’s warning to Captain
Lauterborn is imputed to Deputy Chief Marino.

91

City Defs.’ Mem.

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in Opp’n 7-8 (citing United States v. Colon, 250 F.3d 130, 135
(2d Cir. 2001)).

The collective knowledge doctrine is typically applied
to warrantless searches and seizures, rather than warrantless
entry, and the Second Circuit has not definitively ruled that
the doctrine applies to exigent circumstances, such as under the
emergency aid analysis at issue here.

See Anthony v. City of

New York, 339 F.3d 129, 136 n.3 (2d Cir. 2003) (“[b]ecause the
record before us shows that [police officers] knew the substance
of the 911 call when they [entered an apartment without a
warrant], this case does not raise any issues regarding the
scope of the “collective knowledge” doctrine, and we need not
consider whether the warrantless entry would have been justified
by exigent circumstances if the information provided to the 911
operator was never transmitted either to the police dispatcher
or to the officers on the scene.”).

Nevertheless, other circuit

and district courts have applied the doctrine under similar
circumstances.

See, e.g., United States v. Russell, 436 F.3d

1086, 1095 (9th Cir. 2006) (applying the doctrine to the
emergency aid situation); James v. Chavez, 830 F. Supp. 2d 1208,
1261 (D.N.M. 2011) aff’d, 511 F. App’x 742 (10th Cir. 2013)
(collecting cases from the Ninth and Tenth Circuits, together
with Anthony from the Second, and concluding: “Although the
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parties have not directed the Court’s attention to, and the
Court has not found, cases which discuss whether the collectiveknowledge doctrine can be used to impute knowledge of exigent
circumstances, the only authority which the Court has found has
suggested that the collective-knowledge doctrine can be used.”).
While not settled law in this Circuit, it is concluded that the
collective knowledge doctrine may be applied to exigent
circumstance analysis, just as it applied to warrantless
searches and seizures.

However, City Defendants are incorrect that “it is of
no moment . . .

that Captain Lauterborn alone” knew of his

conversation with Dr. Lamstein for the purpose of the collective
knowledge doctrine.

City Defs.’ Mem. in Opp’n 7.

The doctrine

applies only where officers are in communication, sharing
information relevant to the determination of exigent
circumstances.

United States v. Cruz, 834 F.2d 47, 51 (2d Cir.

1987) (“The determination of whether probable cause to arrest
exists can be based on the collective knowledge of all of the
officers involved in the surveillance efforts because the
various law enforcement officers in this investigation were in
communication with each other.”); Toliver v. City of New York,
No. 10 CIV. 3165 PAC JCF, 2012 WL 7782720, at *6 (S.D.N.Y. Dec.
10, 2012) report and recommendation adopted, No. 10 CIV. 3165
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PAC JCF, 2013 WL 1155293 (S.D.N.Y. Mar. 21, 2013) (“The
[collective knowledge] doctrine applies if the officers involved
are in communication with each other.”); Colon v. City of New
York, No. 11-CV-0173 MKB, 2014 WL 1338730, at *4 (E.D.N.Y. Apr.
2, 2014) (same).

Here, the record does not establish whether

other officers were aware of Dr. Lamstein’s warning to Captain
Lauterborn.

See Facts ¶¶ 92, 123.

Consequently, whether Dr.

Lamstein made the statement to Captain Lauterborn, and whether
Captain Lauterborn in turn communicated that information to his
colleagues such that the collective knowledge doctrine may
apply, present questions of fact barring summary judgment for
the City Defendants.

Similarly, the question of whether the remaining basis
for the initial entry constitute an objectively reasonable basis
for warrantless entry cannot be resolved as a matter of law on
this record.

A jury could find that, “the facts, as they

appeared at the moment of entry, would lead a reasonable,
experienced officer, to believe that there was an urgent need to
render aid or take action.”
151, 157 (2d Cir. 2011).

United States v. Simmons, 661 F.3d

A jury must determine whether the NYPD

acted reasonably given that Schoolcraft, who had been placed on
restricted leave without a gun or badge, had consulted a
psychiatrist, left the 81st without formal approval and did not
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respond to telephone calls and numerous knocks on his door.
Facts ¶¶ 35, 39, 69-72, 104.

See

Whether the officers’ conduct was

improperly motivated is a contended factual issue to be
determined by a jury.

These issues of material fact apply equally to
Defendants’ qualified immunity defense.

“Qualified immunity

will attach to an officer’s decision to enter a dwelling in
response to perceived exigent circumstances so long as the
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir.

2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotations omitted).
City Defendants’ qualified immunity defense is premised on a
disputed fact: whether Dr. Lamstein instructed the NYPD to find
Schoolcraft.

See City Defs.’ Mem. in Supp’t 4 (citing Anthony

v. City of New York, 339 F.3d 129 (2d Cir. 2003)); City Defs.’
Reply Mem. 5.

As in Kerman, “objective reasonableness is a

mixed question of law and fact when, as here, material
historical facts are in dispute.”
374 F.3d 93, 111 (2d Cir. 2004).

Kerman v. City of New York,
The Plaintiffs’ and

Defendants’ motions for summary judgment regarding Plaintiff’s
Fourth Amendment claim are consequently denied.
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ii.

NYPD’s Decision to Remain In Schoolcraft’s Home
Similarly, judgment as a matter of law is

inappropriate with respect to the NYPD’s post-entry conduct.
“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.”

Tierney v. Davidson, 133 F.3d 189, 197-98 (2d Cir.

1998); accord United States v. Andino, 768 F.3d 94, 99 (2d Cir.
2014).

“For example, where officials enter private property to

fight a fire, the scope of the warrantless search is limited to
that reasonably necessary to extinguish the blaze, determine the
cause and origin of a fire, and ensure against rekindling.”

Id.

(quoting United States v. Klump, 536 F.3d 113, 118 (2d Cir.
2008) (internal quotations omitted)).

As was the case with

respect to the initial decision to enter without a warrant, the
decision to remain is evaluated on a reasonableness standard.

Material issues of fact remain with respect to the
reasonableness of the NYPD’s continued presence in Schoolcraft’s
apartment.

It is undisputed that when the NYPD asked

Schoolcraft if he was all right within the first moments after
warrantless entry, Schoolcraft responded “Yeah, I think so.”
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Facts ¶ 129.

When asked why he did not respond to the door and

phone calls, Schoolcraft informed Deputy Chief Marino that he
had taken some Nyquil and had not expected anyone to knock at
his door.

Facts ¶ 131.

was “fine.”

He then informed DI Mauriello that he

Facts ¶ 134.

A factual issue remains as to whether

continued presence by the NYPD was unreasonable.

The majority of justifications to which City
Defendants point, i.e., Schoolcraft’s refusal of medical
treatment and his “rapid retreat” into his apartment after being
escorted toward the waiting ambulance (City Defs.’ Mem. in Opp’n
9) occurred after a trier of fact might conclude that the NYPD
lacked a reasonably objective basis for remaining in
Schoolcraft’s home.

At the time he refused to return to the

81st Precinct, Schoolcraft was indisputably alert and
responsive, and he had not requested medical intervention beyond
saying he had taken Nyquil and had left work because he was not
feeling well.

Facts ¶¶ 127-29, 131, 134.

Following that

exchange, the officers present were not explicitly discussing
Schoolcraft’s ‘wellbeing,’ rather, they were reprimanding
Schoolcraft for leaving without permission and ordering him back
to the 81st Precinct in order to “investigate” why he had left.
See, e.g., Facts ¶ 136.

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However, summary judgment is only appropriate where
the party opposing summary judgment tells a story “which is
blatantly contradicted by the record, so that no reasonable jury
could believe it.”
(2007).

See Scott v. Harris, 550 U.S. 372, 380

This is not the case here.

Contrary to Schoolcraft’s

contention, his situation was not analogous to that of the
plaintiff in United States v. Sikut.
(W.D.N.Y. 2007).

488 F. Supp. 2d 291, 312

In Sikut, police officers unequivocally

admitted that they remained in a residence following a
warrantless entry after they stopped making an exigency
determination.

Id.

It is under such circumstances that a court

may, as a matter of law, hold that police officers’ presence
ceases being about the exigent circumstance.

See, e.g., id.

In

Schoolcraft’s case, City Defendants make no such admissions, and
there is sufficient contradictory evidence in the record to
require credibility determinations and weighing the evidence,
precisely the type of analysis that cannot be undertaken on
summary judgment.
Cir. 1997).

Fischl v. Armitage, 128 F.3d 50, 55–56 (2d

Consequently, the constitutionality of Defendants’

decision to remain in Schoolcraft’s apartment presents a triable
issue.

iii. Designation as an EDP

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Finally, the validity of the NYPD’s designation of
Schoolcraft as an emotionally disturbed person (“EDP”) also
cannot be determined at the summary judgment stage.

Schoolcraft was declared an EDP pursuant to New York’s
Mental Hygiene Law.

The statute permits an officer to place a

person who “appears to be mentally ill and is conducting himself
. . . in a manner which is likely to result in a serious harm to
the person or others” into custody.
9.41.

N.Y. Mental Hyg. Law §

The phrase “likely to result in serious harm” is defined

as:
(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.
Id. § 9.01.

A likelihood of serious harm determination is
evaluated under “the same objective reasonableness standard that
is imposed by the Fourth Amendment.”

Kerman, 374 F.3d at 100.

Likelihood of serious harm can be evidenced by overt acts,
attempts or threats of harm, or by “other conduct” such as
neglect or refusal to care for oneself.

99

Boggs v. New York City

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Health & Hospitals Corp., 523 N.Y.S.2d 71, 89 (N.Y. App. Div.
1987).

However, refusal to accept medical treatment does not,

by itself, establish that a person is dangerous to himself.
Green v. City of New York, 465 F.3d 65, 83 (2d Cir. 2006).

See
In

Green, the Second Circuit considered a New York City Fire
Department Lieutenant’s decision to involuntarily transport a
patient with amyotrophic lateral sclerosis and pneumonia that
explicitly, and repeatedly, declined to go to the hospital after
an episode of labored breathing.

See id. at 69-73.

Though not

in the context of New York’s Mental Hygiene Law, the Second
Circuit noted that “dangerousness to oneself justifying
[involuntary transport to a hospital] does not include a refusal
to accept medical treatment.”

Id. at 83.

Here, material issues of fact, specifically whether
Schoolcraft’s behavior rose to the level of “other conduct
demonstrating” that he was a danger to himself, remain.

See,

Amato v. Hartnett, 936 F. Supp. 2d 416, 435 (S.D.N.Y. 2013)
(legality of civil confinement under Section 9.41 survives
summary judgment where parties dispute whether the patient
refused medical care and whether he made a statement indicating
intent to commit suicide); Thomas v. City of New York, No. 09
CIV 3162 CM HBP, 2010 WL 5490900, at *9 (S.D.N.Y. Dec. 22, 2010)

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(summary judgment inappropriate where parties dispute, inter
alia, whether patient was yelling or cursing at officers).

The record is devoid of any homicidal or other violent
behavior, or of suicidal or self-harming behavior on
Schoolcraft’s part.

See N.Y. Mental Hyg. Law § 9.01.

Therefore, as applied to Schoolcraft’s case, the inquiry under
the applicable sections of the law is whether the NYPD had
probable cause to believe that: (1) Schoolcraft appeared to be
mentally ill; and (2) manifested conduct demonstrating that he
was dangerous to himself.

See id. §§ 9.01, 9.41.

Triable issues of fact remain as to both prongs of
this inquiry.5

As noted above, the questions of whether Dr.

Lamstein ever communicated her concerns to Captain Lauterborn,
or whether he then disseminated that information to colleagues
at the NYPD, are in dispute.
Opinion.

See Section IV.B.i of this

Moreover, the recordings do not contain video so that

evaluation of Schoolcraft’s demeanor following the NYPD’s
warrantless entry is at issue.

See Cameron v. City of New York,

5

City Defendants’ brief appears to reproduce portions of Bayne v. Provost in
support of the contention that these two inquiries “essentially become one”
in Schoolcraft’s situation. Compare Defs.’ Mem. in Supp’t 8 with Bayne v.
Provost, No. 1:04 CV 44, 2005 WL 1871182, at *7 (N.D.N.Y. Aug. 4, 2005). In
Bayne, the court held that the two prongs become one where a nurse
practitioner confirmed her patient was suicidal. Here, by contrast, it is
undisputed that Schoolcraft was never characterized as “suicidal” by a
medical professional or any other person. The prongs in this case therefore
remain distinct.

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598 F.3d 50, 60 (2d Cir. 2010) (blurry and incomplete video
footage evidence cannot be used to determine legality of arrest
as a matter of law, since a possibility existed that the basis
for arrest existed but was not visible in the footage).

Summary judgment is also inappropriate where the
evidence that is undisputed can reasonably be interpreted in
opposing ways.

For example, a jury may find that Schoolcraft’s

calm tone for the duration of the recordings conflicts with his
arguably erratic conduct.

Over the course of sixteen minutes,

Schoolcraft stating he did not feel well, and then that he was
fine, requesting medical care, walked to the ambulance following
a diagnosis of elevated blood pressure, then turned around and
reentered his home, again refusing medical care.
136, 138, 147, 149, 151.

Facts ¶¶ 134,

On the other hand, a jury may also

find that such conduct was the result of having several officers
in tactical gear enter his apartment and his suspension, so that
Schoolcraft’s conduct would not permit any reasonable officer to
believe Schoolcraft satisfied either prongs of the substantial
risk test.

Facts ¶¶ 126, 142.

Under such circumstances, a jury

must determine whether the NYPD had probable cause to find
Schoolcraft mentally ill and a danger to himself.

Cf. Higgins

v. City of Oneonta, 617 N.Y.S.2d 566, 569 (N.Y. App. Div. 1994)
(Holding as a matter of law that confinement was justified
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“[g]iven [the police officers’] knowledge of plaintiff’s
longstanding hostility toward certain members of the Police
Department and City officials, coupled with [his treating
psychiatrist’s] opinion that plaintiff was dangerous and the
obvious threatening nature of plaintiff's phone calls”); Bayne
v. Provost, No. 1:04 CV 44, 2005 WL 1871182, at *7 (N.D.N.Y.
Aug. 4, 2005) (finding probable cause as a matter of law where a
medical professional “persisted in her position that Plaintiff
had made the threat of suicide”).

City Defendants contend, in the alternative, that
‘arguable probable cause’ existed, rendering the NYPD’s actions
protected under qualified immunity.
Supp’t 9.

See City Defs.’ Mem. in

“Arguable probable cause exists when a reasonable

police officer in the same circumstances and possessing the same
knowledge as the officer in question could have reasonably
believed that probable cause existed in the light of wellestablished law.”

Zellner v. Summerlin, 494 F.3d 344, 369 (2d

Cir. 2007) (internal quotations and citations omitted).

A

judicial finding of arguable probably cause can serve as the
basis for granting summary judgment as to the affirmative
defense of qualified immunity.

See generally id. at 367-72.

However, “a court may grant a motion for judgment as a matter of
law only if it can conclude that, with credibility assessments
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made against the moving party and all inferences drawn against
the moving party, a reasonable juror would have been compelled
to accept the view of the moving party.”

Id. at 370-71

(internal citations and quotations omitted).

Here, the record

does not permit such a finding, and the issue must be submitted
to a jury.

The Plaintiffs’ and Defendants’ motions for summary

judgment on Plaintiff’s Fourth Amendment claim are denied.

B. First Amendment Claim Survives Summary Judgment

City Defendants contend that Schoolcraft’s First
Amendment claim should be dismissed as a matter of law.
Defs.’ Mem. in Supp’t 10-15.

City

Schoolcraft alleges that the City

Defendants violated his First Amendment rights to report
“corruption, misconduct and fraud” at the 81st Precinct by
seizing his notes and other effects, having him involuntarily
committed as an EDP, and harassing him at his upstate residence.
See TAC ¶¶ 245-61.

The Second Circuit has tailored the elements

of a First Amendment claim to the factual context alleged.
Compare Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.
2001) with Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir. 2005).
In either formulation, the first requirement is protected
speech.

Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d

Cir. 2008) (“Regardless of the factual context, we have required
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a plaintiff alleging retaliation to establish speech protected
by the First Amendment.”).

i. Schoolcraft Engaged in Protected Speech
“[T]he First Amendment protects a public employee's
right, in certain circumstances, to speak as a citizen
addressing matters of public concern.”
547 U.S. 410, 417 (2006).

Garcetti v. Ceballos,

A public employee, however, must “by

necessity . . . accept certain limitations on his or her
freedom,” because, his speech can “contravene governmental
policies or impair the proper performance of governmental
functions.”

Id. at 418-19.

The Second Circuit recently set out

the applicable inquiry for determining whether a public
employee’s speech is protected under the First Amendment:
Initially, a court must determine “whether the
employee spoke as a citizen on a matter of public
concern. This step one inquiry in turn encompasses
two separate subquestions: (1) whether the subject of
the employee’s speech was a matter of public concern
and (2) whether the employee spoke ‘as a citizen’
rather than solely as an employee.
If the answer to either question is no, that is the
end of the matter. If, however, both questions are
answered in the affirmative, the court then proceeds
to the second step of the inquiry, commonly referred
to as the Pickering analysis: whether the relevant
government entity had an adequate justification for
treating the employee differently from any other
member of the public based on the government's needs
as an employer.”

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Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015)
(hereinafter “Matthews IV”)(citing Garcetti, 547 U.S. at 418;
Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011); Lane v.
Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2380 (2014); Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S.
563, 568 (1968) (internal quotations and citations omitted)).

City Defendants first contend that Schoolcraft lacked
a protected interest with respect to his post-suspension speech
under the First Amendment because he was suspended rather than
terminated on October 31, 2009.

City Defs.’ Mem. in Supp’t 11.,

citing Anemone v. Metro. Transp. Auth., No. 05 CIV. 3170 (LAP),
2008 WL 1956284, at *16 (S.D.N.Y. May 2, 2008) aff'd, 629 F.3d
97 (2d Cir. 2011).

The facts in Anemone are distinguishable

from those in this case.

Unlike Schoolcraft, the plaintiff in

Anemone continued to describe himself as a “current” public
employee even after his suspension.

Id.

Moreover, unlike

Schoolcraft, the plaintiff in Anemone held the title of “Deputy
Executive Director and Director of Security for the MTA,” and
the court found that he had engaged in speech pursuant to his
official duties relating to security.
omitted).

Id. (internal quotations

The City Defendants also do not attempt to square

this Court’s September 10, 2012 Opinion with their current
argument.

See Schoolcraft v. City of New York, No. 10 CIV. 6005
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RWS, 2012 WL 3960118, at *8 (S.D.N.Y. Sept. 10, 2012)
(hereinafter “September 2012 Opinion”).

Indeed, the Court’s

September 2012 holding remains unaltered with respect to
Schoolcraft’s post-suspension speech:
Although the City Defendants contend that Plaintiff,
notwithstanding his suspension was still a sworn law
enforcement officer and employee of the NYPD, the fact
that Plaintiff was suspended and, for the substantial
majority of the time period relevant to the prior
restraint claim, was hundreds of miles outside the
NYPD’s jurisdiction provides a sufficient factual
basis for Plaintiff to allege that he sought to
exercise his First Amendment rights “as a citizen,”
rather than “as a government employee.”
. . .
Plaintiff intended to speak, following his suspension
from the NYPD, to the media and public at large about
the NYPD’s summons policy. This intended speech
addressed a matter of public concern, and, because
Plaintiff intended to speak to the media and public
following his suspension, Plaintiff’s speech was
outside the scope of his official duties.
Accordingly, the speech was protected by the First
Amendment.
Schoolcraft September 2012 Opinion, 2012 WL 3960118, at *6, 8.

In opposition to the City Defendants’ motion,
Schoolcraft suggests that recent case law following the
September 2012 Opinion favors extending his First Amendment
claim to encompass “Schoolcraft’s speech before his suspension.”
Pl.’s Mem. in Opp’n 20-22 (citing Lane v. Franks, ––– U.S. ––––,
134 S.Ct. 2369, 2380 (2014) (the Garcetti test is whether the

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speech falls within the scope of the employee’s ordinary
duties);

Hagan v. City of New York, No. 13-CV-1108 JPO, 2014 WL

4058067 (S.D.N.Y. Aug. 15, 2014) (a public employee reporting
improper conduct of supervisors and other official outside of
the chain-of-command was not part of the employee’s ordinary job
responsibilities); and Griffin v. City of New York, 880 F. Supp.
2d 384, 400 (E.D.N.Y. 2012) (police officer’s report of a
colleague’s misconduct to internal affairs not part of the chain
of command and could qualify as protected speech)).

Though Schoolcraft does not detail the pre-suspension
speech which he contends is now protected, he is presumably
referring to Schoolcraft’s pre-suspension internal reporting to
his supervisors at the 81st Precinct and to his reports to IAB
and QAD.

See Pl.’s Ltr. dated March 17, 2015 requesting a pre-

motion conference (“Schoolcraft’s speech and conduct raising
issues with IAB, QAD and his supervisors at the 81st Precinct, as
well as his plans to report that misconduct to the Commissioner,
are matters of public concern that are entitled to First
Amendment protection before his October 31, 2009 suspension”).6

6

To the extent that he is referring to Schoolcraft’s refusal to adhere to
arrest or summons quotas, this Court’s September 2012 opinion made clear that
such behavior does not constitute speech. September 2012 Opinion, 2012 WL
3960118, at *10.

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In the September 2012 Opinion, this Court ruled that
Schoolcraft could not base his First Amendment claims on his
reporting up the chain of command or his reporting to internal
affairs.

See September 2012 Opinion, 2012 WL 3960118, at *6.

The September 2012 Opinion relied upon the district court
opinion in Matthews v. City of New York, No. 12 Civ. 1354(BSJ),
2012 U.S. Dist. LEXIS 53213 (S.D.N.Y. Apr. 12, 2012)
(hereinafter “Matthews I”), for the proposition that internal
reporting of a quota policy is part of an officer’s role and
therefore not protected.

When ultimately appealed, the Second

Circuit recently vacated the District Court’s ruling in Matthews
I, holding that a patrolman’s reporting on arrest and summons
quota policy is not “part-and-parcel” of his role as a patrolman
and therefore may constitute protected speech if the way in
which the officer reported has a civilian analogue and if the
speech relates to an issue of public concern.

See Matthews v.

City of New York, 779 F.3d 167, 171-76 (2d Cir. 2015)
(hereinafter “Matthews IV”).7

7

The Matthews IV opinion was published after the parties’ summary judgment
briefs in support and opposition were due, but prior to the deadline for the
parties’ reply briefs. Procedurally, Matthews IV is an appeal of a second
district court opinion, Matthews v. City of New York, 957 F. Supp. 2d 442,
445 (S.D.N.Y. 2013) (hereinafter “Matthews III”). Matthews III echoed the
reasoning from Matthews I cited in this Court’s September 2012 Opinion, that
the Patrol Guide requirement made an officer’s quota-related speech part of
his duties as a public employee. See Matthews III, 957 F. Supp. 2d at 459.

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Considering Schoolcraft’s situation in light of the
Second Circuit’s guidance in Matthews IV, the following
conclusions are reached.8

First, the record available here does

not indicate that Schoolcraft played any role in setting policy,
was expected to speak on policy, or had been consulted to
formulate policy.

Indeed, both plaintiffs had the same title of

Patrolman and presumably substantially similar responsibilities
which would not relate to this type of speech.
Matthews IV, 779 F.3d at 174.

See Facts ¶ 1;

Second, the fact that an

officer’s allegations resulted in negative performance
evaluations and other professional difficulties for the
reporting officer “is not relevant to the narrow question of
whether the officer was speaking as citizen or as a public
employee.”

Id. at 170.

Third, the NYPD Patrol Guide’s duty to

report misconduct does not support the conclusion that reporting
corruption is part of Schoolcraft’s role as a police officer,
and is therefore unprotected.

Matthews IV, 779 F.3d at 175.

Fourth, whether Schoolcraft engaged in speech that had a
“comparable civilian analogue” is relevant to establishing
whether his speech was protected.

8

Id.

Unlike in Matthews IV, discovery in this case was not geared specifically
toward establishing the elements of this inquiry and judgment as a matter of
law cannot be rendered. Cf. Matthews v. City of New York, 488 F. App’x 532,
533 (2d Cir. 2012) (hereinafter “Matthews II”) (vacating and remanding
Matthews I for discovery on whether the officer spoke pursuant to his
official duties).

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In light of Mathews IV, Schoolcraft’s First Amendment
claim extends to his pre-suspension speech.

Like Officer

Matthews, Schoolcraft’s reports to QAD and Internal Affairs
concerned precinct-wide summons and arrest quota policies.
Compare Matthews IV, 779 F.3d at 174 with Facts ¶¶ 52-54.

Also

like Matthews, Schoolcraft raised issues of the quotas with his
precinct’s leadership.

Compare Matthews IV, 779 F.3d at 169

(raising concerns about quotas twice with the precinct’s
commanding officer and once with another precinct executive)
with Facts ¶¶ 13-17, 19-20 (raising the issue with 81st Precinct
leadership at the February Appeal Meeting and with leadership in
Brooklyn North command at the March Evaluation Meeting).

City Defendants’ factual distinctions with respect the
speech in which Matthews and Schoolcraft engaged do not alter
the analysis above.

Cf. City Defs.’ Reply Mem. 13-19.

On the

issue of a civilian analog, it is admittedly difficult to
imagine a civilian one for a patrolman’s performance evaluation
and appeal meetings.

See Weintraub v. Bd. of Educ. of City Sch.

Distr. of City of. N.Y., 593 F.3d 196, 203 (2d Cir. 2010) (a
teacher’s choice to pursue his complaint by following the
employee grievance procedure had no civilian analogue).
However, Schoolcraft’s speech is not limited to those channels.
He also raised these issues with IAB on August 20th and with QAD
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on October 7th.

Facts ¶¶ 48, 52.

At minimum, with respect to

IAB, “any citizen may report wrongdoing to the IAB.

Citizens

are able and directed to file reports with the IAB in the exact
same manner as NYPD officers.”

Griffin v. City of New York, 880

F. Supp. 2d 384, 399 (E.D.N.Y. 2012).
had a civilian analogue.

Thus the IAB reporting

Moreover, with respect to the QAD

reporting, whether the public at large could have engaged in
similar speech is not established on this record, and this will
remain a question for trial.

In sum, Schoolcraft’s pre-

suspension speech has civilian analogues.

The question of whether Schoolcraft’s speech is partand-parcel of his official duties is a more difficult one.

The

City Defendants contend that Schoolcraft’s speech is
distinguishable from Matthews’s because Schoolcraft’s pertained
predominately to his own work, his own summons and arrest
‘activity,’ and to conduct at his own precinct.
Reply Mem. 16-17.

See City Defs.’

They see Schoolcraft’s speech as analogous to

the teacher in Weintraub, whose “formal grievance regarding the
administration’s refusal to discipline a student was unprotected
speech because a teacher’s need to discipline his own students
is essential to his ability to effectively run a classroom as
part of his day-to-day responsibilities.”

Weintraub v. Bd. of

Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203
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(2d Cir. 2010) (cited in Matthew IV, 779 F.3d at 173).

City

Defendants also point to another pre-Matthews district court
opinion, which held:

[P]laintiffs’ complaints to their superiors . . .
related to their concerns about their ability to
properly execute their duties as police officers, as
they expressed concern, inter alia, that the
assignment of officers to chauffeur intoxicated
officers left [their police department] short-handed,
that the hiring of uncertified officers and the
retention of unqualified and/or corrupt officers
affected their ability to perform their job
assignments safely and that they were told not to
issue summonses to certain individuals and businesses.
Plaintiffs’ speech in challenging the . . .
defendants’ alleged cover-ups of officer misconduct,
including their complaints to the Suffolk County
District Attorney’s Office, was undertaken in the
course of performing one of their core employment
responsibilities of enforcing the law and, thus, was
speech made pursuant to their official duties.
Moreover, all of the relevant speech reflected
plaintiffs’ special knowledge about the [police]
defendants which was gained as a result of plaintiffs’
position as police officers for those defendants based
upon what plaintiffs’ observed or learned from their
job.

Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203, 211
(E.D.N.Y. 2010).

The Second Circuit affirmed the lower court’s

ruling in Carter on the basis that “Plaintiffs’ allegations
establish no more than that they reported what they believed to
be misconduct by a supervisor up the chain of command -misconduct they knew of only by virtue of their jobs as police
officers and which they reported as “part-and-parcel of [their]
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concerns about [their] ability to properly execute [their]
duties.”

Carter v. Inc. Vill. of Ocean Beach, 415 F. App’x 290,

293 (2d Cir. 2011) (quoting Weintraub, 593 F.3d at 203).

The

Second Circuit cited Weintraub repeatedly in its Carter and
Matthews IV opinions, and gave no indication of having
invalidated or abrogated it.

Consequently, the analysis here

must apply both Weintraub and Matthews IV to Schoolcraft’s
facts.

A distinction between Matthews’s and Schoolcraft’s
speech does exist.

Matthews raised his concerns before he

suffered professional backlash, while Schoolcraft reported the
policies in the context of his professional evaluation,
contending that he was being improperly faulted for failure to
adhere to an invalid policy.

Compare Matthews III, 957 F. Supp.

at 446 with Facts ¶¶ 14-15, 17, 19, 48-52.

Matthews “chose a

path that was available to ordinary citizens who are regularly
provided the opportunity to raise issues with the Precinct
commanders,” while Schoolcraft initially spoke with commanders
in relation to his performance evaluation.
F.3d at 176; cf. Facts ¶¶ 14-15, 17, 19.

Matthews IV, 779

In short,

Schoolcraft’s speech up the chain of command regarding his
performance was closely related to his role as a public
employee, focusing on the ramifications of the policy on his
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performance reviews.

However, the same is not true with respect

to Schoolcraft’s reporting to QAD and IAB.

The QAD and IAB speech, in light of Matthews, is not
part-and-parcel of Schoolcraft’s role and is therefore
protected.

Schoolcraft complained of “corruption involving the

integrity control program” in the 81st Precinct, mainly
attributable to DI Mauriello, resulting “in violation of
people’s civil rights.”

Facts ¶¶ 48, 50.

This is virtually

identical to Matthews’s speech about his own precinct, when
Matthews stated that his own supervisors’ policies were
resulting in “unjustified stops, arrests, and summonses because
police officers felt forced to abandon their discretion in order
to meet their numbers and [were] having an adverse effect on the
precinct’s relationship with the community.”
F.3d at 174 (internal quotations omitted).

Matthews IV, 779

Moreover,

Schoolcraft reported this activity outside the chain of command,
and separate from his appeal process.

These circumstances

distinguish Schoolcraft’s speech from that in Weintraub and
warrant the conclusion that his IAB and QAD reports constituted
protectable speech outside of official duties under Matthews IV.

Having established that Schoolcraft’s speech is
protected, a Pickering analysis is required to determine
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“whether the relevant government entity had an adequate
justification for treating the employee differently from any
other member of the public based on the government’s needs as an
employer.”

Matthews IV, 779 F.3d at 172.

Under the Pickering

test, a government employer may take adverse employment action
against its employee for speaking on a matter of public concern
if: (1) the employer reasonably predicts the speech is
disruptive; (2) the potential disruptiveness is enough to
outweigh the value of the speech; and (3) the employer took
action against the employee based on this disruption and not in
retaliation for the speech.

Locurto v. Safir, 264 F.3d 154, 166

(2d Cir. 2001).

It cannot be said that potential disruption stemming
from reports of a quota policy outweigh the value of the speech.
Imposition of quotas and manipulation of crime statistics, if
true, are matters of general public concern that merit
disclosure and discussion, whether through reports to internal
affairs or larger dissemination to the media.

Moreover, there

is no indication on the record that the City Defendants took
action due to the disruptive nature of Schoolcraft’s speech.
Indeed, the notion that such behavior would be disruptive to the
NYPD is difficult to square with NYPD Patrol Guide § 207–21,
which requires reporting of misconduct of this sort.
116

See

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September 2012 Opinion, 2012 WL 3960118, at *6.

At minimum,

determining whether the City Defendants actions were “based on
the potential for disruption rather than because of his speech”
is a factual question unresolvable on summary judgment.

See

Johnson v. Ganim, 342 F.3d 105, 115 (2d Cir. 2003)

Consequently, Schoolcraft’s First Amendment claim now
includes his pre-suspension speech to QAD and IAB, well as his
post-suspension public statements to the press.

A traditional

First Amendment free speech claim survives summary judgment
where genuine issues of fact exist with respect to whether: (1)
plaintiff has an interest protected by the First Amendment; (2)
defendants’ actions were motivated or substantially caused by
his exercise of that right; and (3) defendants’ actions
effectively chilled the exercise of his First Amendment right.
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
This standard applies to Schoolcraft’s post-suspension speech,
where he was acting as an ordinary citizen.

See September 2012

Opinion, 2012 WL 3960118, at *6 (“the fact that Plaintiff was
suspended and, for the substantial majority of the time period
relevant to the prior restraint claim, was hundreds of miles
outside the NYPD's jurisdiction provides a sufficient factual
basis for Plaintiff to allege that he sought to exercise his
First Amendment rights as a citizen, rather than as a government
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employee”) (internal quotations omitted).

However, where a

public employee alleges an adverse employment action, the Curley
formulation is disfavored.

Morrison v. Johnson, 429 F.3d 48, 51

(2d Cir. 2005) (“[w]here the plaintiff is a public employee
alleging that he suffered an adverse employment action as
retaliation for the exercise of his First Amendment rights, the
standard is not the principle applied in Curley.”).

Rather, to

survive summary judgment, a public employee alleging an adverse
employment action must bring forth evidence showing that: (1) he
has engaged in protected First Amendment activity; (2) he
suffered an adverse employment action; and (3) there was a
causal connection between the protected activity and the adverse
employment action.”

Id.; see also Anemone v. Metro. Transp.

Auth., 629 F.3d 97, 114 (2d Cir. 2011).

This is the standard

that applies to Schoolcraft’s pre-suspension speech.

As noted above, the first prong for both types of
speech has already been satisfied for the purpose of summary
judgment.

The analysis the follows addresses the remaining

elements of the two tests.

ii.

Post-Suspension Free Speech Claim is Not Established
City Defendants contend that the record is devoid of

proof of improper motivation, such that judgment as a matter of
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law in their favor is warranted.
11-13.

See City Defs.’ Mem. in Supp’t

“[P]articularized evidence of improper motive may

include expressions by the officials involved regarding their
state of mind, circumstances suggesting in a substantial fashion
that the plaintiff has been singled out, or the highly unusual
nature of the actions taken.”

Blue v. Koren, 72 F.3d 1075, 1084

(2d Cir. 1995).

According to City Defendants, “is illogical to
conclude that any defendant could have harbored an intent to
prevent Plaintiff from going to the media with his allegations
before his allegations became public in The Daily News on
February 1, 2010.”

City Defs.’ Mem. in Supp’t 12.

Whether a

reasonable jury may conclude that the NYPD’s numerous extrajurisdictional trips to Schoolcraft’s Johnstown residence
following his release from Jamaica Hospital were unreasonable
and “highly unusual,” and constituted circumstantial proof of an
improper motive, is a close question.

See Blue, 72 F.3d at

1083-84, see Facts ¶ 300.

“[C]ourts are reluctant to decide issues of intent on
a motion for summary judgment.”

Vumbaca v. Terminal One Grp.

Ass’n L.P., 859 F. Supp. 2d 343, 380 (E.D.N.Y. 2012) (citing
Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003) (holding, in
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a case involving a constitutional tort, that “[w]here a factual
issue exists on the issue of motive or intent, a defendant's
motion for summary judgment on the basis of qualified immunity
must fail”); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Turtur, 892 F.2d 199, 205 (2d Cir. 1989) (“Questions of intent,
we note, are usually inappropriate for disposition on summary
judgment.”); Orange Lake Assocs., Inc. v. Kirkpatrick, 825
F.Supp. 1169, 1177 (S.D.N.Y. 1993) (“Cases in which the
underlying issue is one of motivation, intent, or some other
subjective fact are particularly inappropriate for summary
judgment, as are those in which the issues turn on the
credibility of the affiants.”), aff’d, 21 F.3d 1214 (2d Cir.
1994); Sorensen v. City of New York, No. 98 Civ. 3356, 2003 WL
169775, at *4 (S.D.N.Y. Jan. 23, 2003) (“It is well-settled that
questions of intent in a variety of contexts cannot be resolved
on a motion for summary judgment.”).

In this instance, the

motive prong need not be resolved since a separate basis
dismissal of the claim exists.

In the context of a private plaintiff, as Schoolcraft
is post-suspension, a triable issue must exist with respect to
an actual deprivation of the right of free speech in order for
the post-suspension claim.

In other words, to survive summary

judgment, there must be evidence showing either that: (1)
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defendants silenced the plaintiff or (2) defendants’ actions had
some actual, non-speculative “chilling effect” on his speech.
Williams v. Town of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008).
The record indicates that Schoolcraft spoke to several media
outlets following the visits to his home.

Indeed, he testified

that the NYPD’s conduct spurred him to action.

His behavior,

akin to the plaintiff in Curley, who exercised his First
Amendment right notwithstanding what he alleged was
unconstitutional government action coercion, justifies summary
judgment in the City Defendants’ favor.
73.

See Curley, 268 F.3d at

It is likewise similar to the plaintiff in Williams v. Town

of Greenburgh, whose First Amendment claim dismissed on summary
judgment where record showed that he spoke out against
municipality after the municipality’s allegedly unconstitutional
coercive conduct.

535 F.3d 71, 78 (2d Cir. 2008).

Schoolcraft’s First Amendment claim with respect to his postsuspension speech is consequently dismissed.

iii. Pre-Suspension Speech Claim Survives Summary Judgment
Conversely, Schoolcraft’s First Amendment claim with
respect to his pre-suspension speech to IAB and QAD survives
summary judgment.
protected.

As found above, Schoolcraft’s speech was

Consequently, the two prongs that remain to be

satisfied are whether he suffered an adverse employment action,
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and whether there was a causal connection between the protected
activity and the adverse employment action.”

See Anemone, 629

F.3d at 114.

“[W]hether an undesirable employment action qualifies
as being ‘adverse’ is a heavily fact-specific, contextual
determination.”

Zelnik v. Fashion Inst. of Tech., 464 F.3d 217,

226 (2d Cir. 2006).

Action adverse for the purposes of the

First Amendment includes “discharge, refusal to hire, refusal to
promote, demotion, reduction in pay, and reprimand.”
(internal quotations and citations omitted).

Id.

On these facts, a

reasonable jury may determine that Schoolcraft’s suspension and
the preceding conduct of the NYPD on October 31st would have
dissuaded a reasonable officer from engaging in speech.

See,

e.g., Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir.
2001) (“an involuntary overnight trip to Bellevue has an obvious
chilling effect”).

A reasonable jury may likewise determine that there
was a causal connection between Schoolcraft’s reporting to IAB
and QAD and his subsequent suspension.

At the time of his

suspension, Schoolcraft received a failing evaluation from his
NYPD supervisors for his failing to adhere to arrest quotas.
See Facts ¶ 6.

When Schoolcraft challenged his evaluation, he
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alleges that he had been pretextually disciplined and placed on
restricted duty.

See generally, Facts ¶¶ 8, 27-47, 51.

When

Schoolcraft reported the existence of quotas and crime
misclassifications to IAB, his supervisors were notified.
Declaration of Nathaniel B. Smith dated February 11, 2015
Exhibit (hereinafter POX) 41 659:1-21.

On October 31st,

Schoolcraft’s memo book containing entries which he believed
reflected corruption was taken from him for several hours, and
the officer that took the book began behaving strangely toward
Schoolcraft.

Facts ¶ 67.

Later that day, the NYPD surrounded

Schoolcraft’s home, entered without a warrant, suspended him,
and declared him an EDP.

See generally, Facts ¶¶ 115-174.

In sum, Schoolcraft’s First Amendment claim on the
basis of his pre-suspension speech survives summary judgment.

iv.

Qualified Immunity Attaches to the First Amendment
Claim
City Defendants contend that Schoolcraft’s First

Amendment retaliation claim is barred under the doctrine of
qualified immunity.

As the Second Circuit explained:

Qualified immunity shields officials from liability
for civil damages insofar as their conduct does not
violate clearly established statutory or
constitutional rights of which a reasonable person
would have known. A right is “clearly established”
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when the contours of the right are sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. Though a mere
mistake in the performance of an official duty may not
deprive the officer of the defense, the qualified
immunity doctrine does not shield performance that
either was in violation of clearly established law or
was plainly incompetent.

Jackler v. Byrne, 658 F.3d 225, 242-43 (2d Cir. 2011).

As

discussed above, and particularly in light of this Court’s
contrary September 2012 Opinion, Schoolcraft’s protected First
Amendment right to report to IAB and QAD was not clearly
established at the time it was made.

Consequently, the First

Amendment Claim cannot be pleaded against any officers in their
individual capacities.

C. Monell Claims against City Defendants Survive
Summary Judgment

City Defendants contend that Plaintiff’s municipal
liability claims should be dismissed as a matter of law for
failure to satisfy any of the bases of liability under Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
See generally, City Defs.’ Mem. in Supp’t 30-48; City Defs.’
Reply Mem. 36-44.

Plaintiff responds that the record supports

two of Monell’s grounds for municipal liability and that

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dismissal at this stage is therefore inappropriate.

See

generally, Pl.’s Mem. in Opp’n 72-83.

The parties agree that a valid claim for municipal
liability under § 1983 exists under Monell if a plaintiff can
show, inter alia: (1) “the existence of an unlawful practice by
subordinate officials so permanent and well settled to
constitute ‘custom or usage,’ with proof that this practice was
so manifest as to imply the acquiescence of policy-making
officials; or (2) a failure to train or supervise that amounts
to ‘deliberate indifference’ to the rights of those with whom
the municipality’s employees interact.

City Defs.’ Mem. in

Supp’t 31 (citing Monell, 436 U.S. at 690); Pl.’s Mem. in Opp’n
73 (citing Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226
(2d Cir. 2004); Cash v. County of Erie, 654 F.3d 324, 334 (2d
Cir. 2011); Okin v. Village of Cornwall-On-Hudson Police Dep’t,
577 F.3d 415, 439 (2d Cir. 2009)).

Additionally, a Plaintiff

must demonstrate that the municipality’s policy or custom caused
the deprivation of the injured Plaintiff’s federal or
constitutional rights.

See, e.g., Monell, 436 U.S. 658, 690-91;

City of Canton v. Harris, 489 U.S. 378 (1989); Sarus v. Rotundo,
831 F.2d 397, 400 (2d Cir. 1987).

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Monell claims can be brought against a municipality
notwithstanding the fact that the same claims were barred by the
doctrine of qualified immunity as asserted against individual
officers.

See Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir.

2013) (“[T]he entitlement of the individual municipal actors to
qualified immunity because at the time of their actions there
was no clear law or precedent warning them that their conduct
would violate federal law is also irrelevant to the liability of
the municipality . . . .

Municipalities are held liable if they

adopt customs or policies that violate federal law and result in
tortious violation of a plaintiff’s rights, regardless of
whether it was clear at the time of the adoption of the policy
or at the time of the tortious conduct that such conduct would
violate the plaintiff’s rights.”) (internal citations and
quotations omitted); Amore v. Novarro, 624 F.3d 522, 535–536 (2d
Cir. 2010) (same); Vives v. City of New York, 524 F.3d 346, 350
(2d Cir. 2008) (same); see also Owen v. City of Independence,
445 U.S. 622, 650 (1980).

Consequently, the analysis below

applies to both the Fourth and First Amendment claims discussed
in Sections IV.A and IV.B of this Opinion.

i. Well-Settled Custom
Monell liability attaches where the existence of an
unlawful practice by subordinate officials is so permanent and
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well settled that it constitutes a “custom or usage,” with proof
that this practice was so manifest as to imply the acquiescence
of policy-making officials.

See City of St. Louis v.

Praprotnik, 485 U.S. 112, 127-30 (1985); Sorlucco v. New York
City Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992).

“A

persistent practice may constitute municipal policy whether it
is carried out by the policymakers themselves, by other highranking officials, or even by subordinate employees.”

Id.

“However, before the actions of subordinate city employees can
give rise to § 1983 liability, their discriminatory practice
must be so manifest as to imply the constructive acquiescence of
senior policy-making officials.”

Id.

Schoolcraft points to two categories of evidence that
he contends demonstrates a policy or custom sufficient to
survive summary judgment.

The first relates to expert testimony

and reports regarding the existence of what has been termed the
“blue wall of silence” (or “Wall”).

See POX 1.

Plaintiff’s

experts, Drs. Eli B. Silverman and John A. Eterno described the
Wall as “a police culture that prizes intense loyalty, unity and
solidarity among police officers to the extent that any officer
reporting the wrongdoing of another officer would be in
violation of the code and subject to retaliation.”
Officers that violate the code are labelled “rats.”
127

Id. at 8.
Id. at 9.

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The experts further testified that the Wall has been found to be
an issue with the NYPD in the past, first in the 1970s by the
Knapp Commission and then in the 1990s by the Mollen Commission.
Id.

Plaintiff’s experts also described their own 2008 and 2012

surveys of NYPD officers, which found “widespread pressure on
officers” to write summonses, make arrests, and conduct forcible
stops.

Id. at 14.

The report concludes that Schoolcraft was a

“victim” of the Wall and of the pressure put on the NYPD to
generate favorable crime statistics.

Id. at 25-26.

Schoolcraft also offered the Mollen Commission report,
which found that officers reporting corruption at the NYPD were
labeled “rats,” and the label resulted in professional and
interpersonal harm coming to the officer, as well as the
testimony of former Police Commissioner Raymond Kelly regarding
the Wall.

See POX 36 at 54-56 (providing examples of

retaliatory conduct); POX 37 at 211 (Kelly testimony on Wall).
Schoolcraft next pointed to an IAB report entitled “Police
Corruption and Culture,” published by IAB’s Corruption and
Analysis Unit.

See POX 38.

In its report, IAB noted that

“[p]hysical fear surfaced several times during the discussion on
reporting corruption” in the context of police officer focus
groups run by IAB.

Id. at 44.

The report noted views diverged

by rank on the issue of whether officers were reluctant to
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report misconduct.

Id. at 9.

This fear of retaliation related

to both serious and less serious officer misconduct.

Id. at 8-

9.

The second category of evidence offered by Schoolcraft
to prove a custom or policy involves officer testimony and
accounts of the Wall.

This category includes recent incidents

of purported retaliatory conduct involving other NYPD officers
who revealed crime statistics manipulation.
Pl.’s Mem. in Opp’n 77-80.

See generally,

Schoolcraft points to the testimony

of two officers from Floyd v. City of New York, 08 Civ. 1034.
See generally POX 40, POX 41.

Officer Adhyl Polanco testified

in Floyd that he was declared an EDP, had his gun and shield
taken away and was suspended after he reported on the quota
system in September of 2011.

POX 40 540:1-22.

Officer Pedro

Serrano testified that he was retaliated against and labeled a
rat after he spoke out against quotas at his precinct, starting
with internal discussions with precinct supervisors in 2007.
POX 41 659:1-21.

Schoolcraft further contends that Officer

Craig Matthews, plaintiff in a separate case, was also
retaliated against after voicing his concerns about quotas.
at 79-80.

Id.

Finally, this category includes Lieutenant Joseph

Ferrara’s testimony relating to Schoolcraft’s reporting to IAB
and the NYPD’s response.

See generally POX 39.
129

Ferrara

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testified that Mauriello characterized Schoolcraft as a “rat” at
supervisory meetings of the 81st Precinct.
58:10-17, 192:8-25.

Id. at 56:15-17,

Ferrara also testified about his reluctance

to report officer misconduct, which was motivated by a concern
that he would be retaliated against by the NYPD.
10.

Id. at 79:1-

Finally, Ferrara testified that he overheard that the

precinct telephone switchboard operator left a message for
Schoolcraft improperly revealing that IAB had called him.

Id.

at 193:12-18.

City Defendants contend that the reports on
retaliation for reporting of police misconduct are too old to be
relevant as a matter of law, and they also raise several
admissibility objections to the reports.
Mem. 37-38.

See City Defs.’ Reply

City Defendants also contend that the anecdotal

evidence of other police officers that were the subject of
retaliation is also inadequate as a basis for concluding a
custom existed, and inadmissible.

Id. at 39-43.

City

Defendants expounded the admissibility arguments in their reply
memorandum, leaving Plaintiff without an opportunity to respond.
They explicitly reserve the right to raise objections under
Rules 402, 403, 702 and, presumably the hearsay rules, of the
Federal Rules of Evidence in subsequent motions.
Defs.’ Reply Mem. 37 n. 14, 39 nn. 16-17.
130

See City

Consequently,

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admissibility issues, to the extent they persist,9 will be
addressed in later proceedings and will not bar consideration in
connection with the instant motions.

The various reports, expert testimony and the
testimony of other officers that were the purported victims or
witnesses to this type of retaliation are sufficient to give
rise to a question of fact as to whether a custom or policy of
retaliation against “rats” existed and, if so, whether it was
the direct cause of Schoolcraft’s injuries brought pursuant to
Section 1983.

While City Defendants are correct that

“contemporaneous or subsequent conduct cannot establish a
pattern of violations that would provide notice to the city and
the opportunity to conform to constitutional dictates,” the
subsequent conduct testimony does not stand alone.

See City

Defs.’ Mem. in Supp’t 37 (quoting Connick v. Thompson, 131 S.
Ct. 1350, 1364 (2011)).
respect to causation.

Similarly, a triable issue exists with

It is for a jury to decide whether DI

Mauriello labelled Schoolcraft a “rat,” and whether that

9

City Defendants’ dubious support for the contention that this District’s
“judicial decisions are hearsay” is a ruling that Ecuadorian court decisions
are hearsay in Chevron Corp. v. Donziger, 974 F.Supp.2d 362, 605 (S.D.N.Y.
2014). City Defendants also object to the admissibility of the Mollen
Commission Report on hearsay grounds but do not explain why the public record
exception in Fed. R. Evid. 803(8)(A)(iii) does not render the report
admissible.

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designation resulted in the alleged retaliatory conduct
discussed above.

Several courts have found an issue of triable fact
where, as here, “plaintiff produced records of the testimony of
experts, fellow officers, and [a] former Police Commissioner . .
. before the Mollen Commission to the code of silence that
existed among police officers to prevent officers from breaking
ranks”).

Ariza v. City of New York, No. CV-93-5287, 1996 WL

118535, at *5 (E.D.N.Y. Mar. 7, 1996) (denying summary judgment
on Monell claim because “plaintiff produced records of the
testimony of experts, fellow officers, and [a] former Police
Commissioner . . . before the Mollen Commission to the code of
silence that existed among police officers to prevent officers
from breaking ranks”); see also Barry v. New York City Police
Dep’t, No. 01 CIV. 10627 CBM, 2004 WL 758299, at **11-14
(S.D.N.Y. Apr. 7, 2004); White-Ruiz v. City of New York, No.
93CIV.7233 (DLC) (MHD), 1996 WL 603983, at *10 (S.D.N.Y. Oct.
22, 1996); cf. Domenech v. City of New York, 919 F. Supp. 702,
711 (S.D.N.Y. 1996) (where this Court held that the Mollen
Commission report was not probative since an officer was
alleging retaliation after reporting sexual harassment, i.e.,
conduct unrelated to corruption).

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If this evidence is admissible, the arguments
propounded by the City Defendants in opposition to it can be
presented to the jury.

It is for a jury to decide whether the

commission and IAB reports, drafted several decades ago, are
persuasive indications of today’s NYPD culture or whether
Schoolcraft’s harm was the direct result of the NYPD’s custom of
retaliation against “rats.”

It remains a triable issue whether

the other officers’ accounts of retaliation, viewed in light of
the Wall, are adequate indications of a larger trend.

Such

questions are not, however, resolvable as a matter of law.

ii.

Failure to Train
A municipality may also be liable under Monell where

the Plaintiff demonstrates a failure to train or supervise that
amounts to “deliberate indifference” to the rights of those with
whom the municipality’s employees interact.
U.S. at 388.

City of Canton, 489

“[D]eliberate indifference is a stringent standard

of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.”

Bd. Of Cnty.

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)
(internal quotations and citations omitted).

Plaintiff must

show: (1) that the policymaker knows to a “moral certainty” that
the employees will confront a given situation, (2) that the
situation presents the employees with a difficult choice of the
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sort that training will make less difficult or that there is a
history of mishandling the situation, and (3) that the wrong
choice by a city employee will frequently cause the deprivation
of a citizen’s constitutional rights.

Walker v. City of New

York, 974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotations
and citations omitted).

However, as the Second Circuit

explained:
City of Canton requires that plaintiffs establish not
only that the officials’ purported failure to train
occurred under circumstances that could constitute
deliberate indifference, but also that plaintiffs
identify a specific deficiency in the city’s training
program and establish that that deficiency is “closely
related to the ultimate injury,” such that it
“actually caused” the constitutional deprivation.

Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir.
2004).

Schoolcraft has not pointed to a “specific
deficiencies in the city’s training program.”

Id.

Indeed,

Schoolcraft does not mention the NYPD’s training program at all
in his opposition papers.

Consequently, the training prong is

unsubstantiated.

D. Section 1983 Conspiracy Claim is Dismissed

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City Defendants contend that the intra-corporate
conspiracy doctrine bars Schoolcraft’s § 1983 conspiracy claim
with respect to the NYPD and FDNY defendants, and that the
conspiracy claims as between the City Defendants and Jamaica
Hospital fail for lack of evidence indicating a conspiracy.

See

City Defs.’ Mem. in Supp’t 18-19; City Defs.’ Reply Mem. 26-30.

i. Intra-Corporate Conspiracy Doctrine
Under the doctrine, “there is no conspiracy if the
conspiratorial conduct challenged is essentially a single act by
a single corporation acting exclusively through its own
directors, officers, and employees, each acting within the scope
of his employment.”
Cir. 1978).

Herrmann v. Moore, 576 F.2d 453, 459 (2d

City Defendants accurately note that all the NYPD

and FDNY defendants are alleged to have engaged in illegal
conduct “within the scope of their employment by the City of New
York” and “in furtherance of their employment by the City of New
York” and “under the supervision of the said department and
according to their official duties.”

TAC ¶¶ 9, 11-12.

City

Defendants contend that the doctrine invalidates the conspiracy
claim a matter of law as a result of Schoolcraft’s pleadings.

In opposition, Plaintiff raises two arguments.
generally Pl.’s Mem. in Opp’n 38-42.
135

See

The first relates to the

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principle that the doctrine does not apply to actions taken by
several policy-making bodies operating ostensibly within the
same organization.

Girard v. 94th St. & Fifth Ave. Corp., 530

F.2d 66, 71 (2d Cir. 1976) (distinguishing between “one single
business entity with a managerial policy implemented by the one
governing board,” which is covered by the doctrine, and one
where “each department had its own disparate responsibilities
and functions so that the actions complained of by the plaintiff
were clearly not actions of only one policymaking body but of
several bodies,” which is not covered by the doctrine).

In

Girard, “each department had its own disparate responsibilities
and functions.”

Id.

Here, conversely, Plaintiff’s TAC states

that all the NYPD defendants were “acting in furtherance of
their employment” by the City of New York and under the
“supervision of one department,” the NYPD.
(emphasis added).
conspiracy.

See TAC ¶¶ 9, 11

The same result applies to an FDNY-NYPD

The TAC alleges that the FDNY defendant acted in

furtherance and within the scope of her employment by the City
of New York.

TAC ¶¶ 15-16.

While Schoolcraft admittedly does

not categorize the FDNY and NYPD as the same department, the
record does not support a finding of divergent responsibilities
and functions that would constitute an exception under this
doctrine.

Indeed, a factual condition-precedent to Plaintiff’s

municipal liability theory is that all of the purported NYPD and
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FDNY conspirators were acting in furtherance of the goals of one
policy-making body, the City of New York.

Plaintiff’s first

argument therefore fails.

Plaintiff also argues that the personal-interest
exception renders the doctrine inapplicable here.

That

exception applies where a plaintiff adequately alleges that each
defendant possessed an independent, personal conspiratorial
purpose.

Everson v. New York City Transit Auth., 216 F. Supp.

2d 71, 76 (E.D.N.Y. 2002).

Here, Schoolcraft pleads the

opposite as to both the NYPD and the FDNY defendants; namely,
that they acted “in furtherance of their employment by the City
of New York.”

TAC ¶¶ 12, 15-16; see also McEvoy v. Spencer, 49

F. Supp. 2d 224, 226 (S.D.N.Y. 1999) (“The individual defendants
here are employees of the defendant [municipality].

True, they

work for different departments of the City, but that is of no
more moment in the municipal context than it would be if the
individual defendants worked for the Mainframe and Personnel
Divisions of IBM and were accused of conspiring with their
employer corporation to discriminate against another employee.
Such a claim cannot, as a matter of law, be sustained.”).
Though in his opposition papers, Plaintiff contends that this
purported conspiracy is “far more complex and far reaching than”
those contemplated by the intra-conspiracy doctrine, his claim
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in the TAC is limited to the events of October 31, 2009.
Compare Pl.’s Mem. in Opp’n 39 with TAC ¶¶ 291-95.

Therefore,

this exception is also inapplicable.

The NYPD and FDNY defendants cannot be co-conspirators
under the facts presented.

If any conspiracy claim exists, it

is between the City of New York and Jamaica Hospital.

ii.

Conspiracy Claims as Between the City Defendants and
Jamaica Hospital are Dismissed
City Defendants contend that the conspiracy claim as

between the City Defendants and Jamaica Hospital should be
dismissed as a matter of law.

“To prove a § 1983 conspiracy, a

plaintiff must show: (1) an agreement between two or more state
actors or between a state actor and a private entity; (2) to act
in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (internal
quotations omitted).

“While conclusory allegations of a § 1983

conspiracy are insufficient, [. . .] such conspiracies are by
their very nature secretive operations, and may have to be
proven by circumstantial, rather than direct, evidence.”
(internal quotations and citations omitted).

138

Id.

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The fundamental point of contention on this claim is
whether evidence supporting an agreement exists.

Compare City

Defs.’ Mem. in Supp’t 19-21 and City Defs.’ Reply Mem. 30-31
with Pl.’s Mem. in Opp’n 43-60.

Plaintiff provides an extensive

recitation of the context of the events of October 31, 2009 in
his opposition papers.

See generally, Pl.’s Mem. in Opp’n 43-60

(citing mainly to deposition testimony and documentary evidence
reflecting the City’s and Jamaica Hospital’s actions taken on
October 31, 2009 and following Schoolcraft’s arrival at Jamaica
Hospital).

Viewed in the light most favorable to Schoolcraft as
the non-movant, the circumstantial evidence of an agreement,
besides that which was discussed in the Fourth Amendment Claims
Section above pertaining predominately to the NYPD defendants,
is that: (1) there existed a disparity between the 911
dispatcher’s description of Schoolcraft as in “unknown
condition” versus Lieutenant Hanlon’s testimony that she was
responding to a “barricaded EDP”; (2) EMT Sangeniti measured
Schoolcraft’s blood pressure while Schoolcraft was being
disciplined by Chief Marino; (3) EMT Sangeniti urged Schoolcraft
to go to the hospital on the basis of the blood pressure
reading; (4) EMT Sangeniti and Lieutenant Hanlon insisted that
Schoolcraft be taken to Jamaica Hospital, which had a
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psychiatric ward, rather than Forest Hills which did not; (5)
Jamaica Hospital was not closer than Forest Hills Hospital; (6)
Lieutenant Hanlon testified that one of the considerations
making Jamaica Hospital a better choice was existence of the
psychiatric ward; (7) the two EMTs offered conflicting testimony
as to whether two or only one blood pressure test was performed,
and when the second reading was taken; and (8) a second blood
pressure reading was not taken, contrary to standard medical
practice, and JHMC physicians conducted a psychological
evaluation of Schoolcraft based upon the NYPD’s representations
and notwithstanding the fact that Schoolcraft was brought in due
to high blood pressure.

Id.

The above-summarized conduct may be interpreted as
reasonable under the circumstances, or perhaps as indicating
incompetence on the part of the first responders or JHMC’s
physicians.

However, this record cannot be reasonably construed

as circumstantial proof of an agreement.

See Cine SK8, Inc. v.

Town of Henrietta, 507 F.3d 778 (2d Cir. 2007) (while there was
evidence to suggest that each individual acted with racial
animus, there was no evidence to suggest that there was an
understanding among the defendants to do so); Scotto v. Almenas,
143 F.3d 105 (2d Cir. 1998); Manbeck v. Micka, 640 F.Supp.2d
351, 379 (S.D.N.Y. 2009) (dismissing conspiracy claim where
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there was no evidence that the state and private defendants had
a “meeting of the minds” with the goal of depriving plaintiff of
her constitutional rights).

In the absence of “supporting

operative facts” to show an agreement or concerted action to
deprive the plaintiff of his civil rights, a conspiracy claim is
properly dismissed.

Johnson ex rel. Johnson v. Columbia Univ.,

No. 99 CIV. 3415 (GBD), 2003 WL 22743675, at *15 (S.D.N.Y. Nov.
19, 2003).
Id.

Allegations of “joint conduct” are not sufficient.

Moreover, “private corporations can act only through

natural persons, and their § 1983 liability arises through the
conduct of their employees.”

Schoolcraft, 2011 WL 1758635, at

*3 (internal quotations and citations omitted).

Consequently,

the agreement would have had to be between the City Defendants
and Dr. Bernier, who committed Schoolcraft.

See Facts ¶ 237.

No evidence of an actual conversation between Dr. Bernier and
the NYPD exists.

See generally Facts ¶¶ 230-33.

Even if her

review of other physicians’ notes reflecting NYPD’s statements
to JHMC’s staff regarding Schoolcraft could be construed as
circumstantial proof of an agreement, Schoolcraft’s § 1983
claims against JHMC fail since JHMC is not a state actor, as
discussed below.

Consequently, the conspiracy claim that

derives from those § 1983 claims must also fail.
VI.A of this Opinion.

141

See Section

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V.

REMAINING CLAIMS RELATING TO CITY DEFENDANTS AND DI
MAURIELLO

A. False Arrest and Imprisonment Claims Survive
Summary Judgment

Under New York law, the tort of false arrest is
synonymous with that of false imprisonment.

Kraft v. City of

New York, 696 F.Supp.2d 403, 421, n.8 (S.D.N.Y. 2010) (citing
Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991)).

To establish a

cause of action for false imprisonment, a plaintiff must
establish that: (1) the defendant intended to confine him; (2)
the plaintiff was conscious of the confinement; (3) the
plaintiff did not consent to the confinement; and (4) the
confinement was not otherwise privileged.

Smith v. County of

Nassau, 34 N.Y.2d 18, 22 (1974); Hernandez v. City of New York,
953 N.Y.2d 199 (N.Y. App. Div. 2012).

The NYPD’s decision to involuntarily hospitalize a
plaintiff are privileged if taken in conformity with the New
York’s Mental Hygiene Law.

Kerman v. City of New York, 261 F.3d

229, 240 n.8 (2d Cir. 2001).

As discussed in detail in Section

IV.A of this Opinion, questions of material fact remain as to
whether the City Defendants declared Schoolcraft an EDP

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consistent with the Mental Hygiene Law.

Consequently, summary

judgment on this issue is inappropriate.

B. Intentional Infliction of Emotional Distress Claim against
City Defendants Survives Summary Judgment

City Defendants contend that Plaintiff’s Intentional
Infliction of Emotional Distress (“IIED”) claim is duplicative
of his search and seizure and excessive force claims, and should
therefore be dismissed.

See City Defs.’ Mem. in Supp’t 21.

Courts do not dismiss IIED claims whose substantiating conduct
differs from those of other causes of action.

See, e.g.,

Sylvester v. City of New York, 385 F. Supp. 2d 431, 443
(S.D.N.Y. 2005); Levine v. Gurney, 539 N.Y.S.2d 967, 968 (N.Y.
App. Div. 1989); Murphy v. Murphy, 486 N.Y.S.2d 457, 459 (N.Y.
App. Div. 1985); cf. Bender v. City of New York, 78 F.3d 787,
792 (2d Cir. 1996) (noting that New York courts dismiss IIED
claims whose conduct falls under the ambit of other torts but
affirming lower court’s decision to allow IIED claim where the
IIED claim “could be found to involve additional elements not
necessarily comprehended by the torts” alleged.).

Schoolcraft’s IIED claim alleges, inter alia, that he
was “publicly embarrassed and humiliated,” “was caused to suffer
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severe emotional distress,” and “was forced to incur substantial
expenses and had his professional reputation destroyed.”
Contrary to City Defendants’ contention, these allegations do
not overlap with Schoolcraft’s Fourth Amendment and excessive
force claims.

The IIED claim extends beyond those claims and is

not therefore dismissed on summary judgment.

Compare TAC ¶¶

340-48 with TAC ¶¶ 272-74, 280-84.

C. Common Law Negligent Hiring, Training, Supervision
and Retention Claim against City Defendants is Dismissed

City Defendants correctly note that New York law does
not permit a claim for negligent hiring, training, retention or
supervision where the defendants act in the scope of their
employment.

City Defs.’ Mem. in Supp’t 22-23 (citing Newton v.

City of New York, 681 F. Supp. 2d 473, 488 (S.D.N.Y. 2010);
Stokes v. City of New York, 05-CV-0007 (JFB)(MDG), 2007 U.S.
Dist. LEXIS 32787, *53-54 (E.D.N.Y. May 3, 2007); Colodney v.
Continuum Health Partners, Inc., 03-CV-7276 (DLC), 2004 U.S.
Dist. LEXIS 6606, *27-28 (S.D.N.Y. Apr. 15, 2004); Sun Min Lee
v. J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 312 (S.D.N.Y.
1994); Karoon v. New York City Transit Authority, 241 A.D.2d
323, 324 (N.Y. App. Div. 1st Dept. 1997); Eifert v. Bush, 27

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A.D.2d 950 (N.Y. App. Divi. 2d Dept. 1967), aff’d 22 N.Y.2d 681
(1968)).

Plaintiff responds that parties are permitted to plead
inconsistent legal claims.

Pl.’s Mem. in Opp’n 66.

While

Plaintiff is correct, this is not an inconsistent claim.

The

TAC alleges, and City Defendants have admitted, that the
individual defendants acted within the scope of their
employment.

See TAC ¶¶ 11, 15; City Defs.’ Mem in Supp’t 23.

“[W]here a defendant employer admits its employees were acting
within the scope of their employment, an employer may not be
held liable for negligent hiring, training, and retention as a
matter of law.”

Rowley v. City of New York, No. 00 CIV. 1793

(DAB), 2005 WL 2429514, at *13 (S.D.N.Y. Sept. 30, 2005)
(collecting cases).

Consequently, no issues of material fact

exists for a jury to resolve, and this claim is dismissed.

D. Negligent Disclosure of IAB Complaint Claim is Dismissed

Under New York law, a negligence claim requires: “(1)
the existence of a duty on Defendant’s part as to Plaintiff; (2)
a breach of this duty; and (3) injury to the Plaintiff as a
result thereof.”

Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111,

114 (2d Cir. 2000).

The City Defendants contend that the claim
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is barred by New York’s public policy, and, in the alternative,
that each of its elements cannot be satisfied under this record.
See generally City Defs.’ Mem. in Supp’t 23-29.

i. Public Policy Does Not Bar Claim
City Defendants contend that Schoolcraft’s claim for
negligent disclosure of the IAB reports against Mauriello and
Caughley are barred by public policy, but they have not cited to
cases holding that public policy disfavors claims for negligent
disclosure of IAB reports.

City Defendants instead rely on New

York’s public policy rule disfavoring claims for negligent
investigation or negligent prosecution.

See, e.g., Russ v.

State Employees Fed. Credit Union (SEFCU), 298 A.D.2d 791, 793,
750 N.Y.S.2d 658 (2002); Jenkins v. City of New York, No. 91
CIV. 3539 (RLC), 1992 WL 147647, at *8 (S.D.N.Y. June 15, 1992).
However, aside from conclusory statements that the negligent
disclosure claim is “little more than an attempt to evade the
bar on claims for negligent investigation,” the City Defendants
do not provide support for their position that Schoolcraft’s
claim is akin to a negligent investigation or prosecution claim.
That category of claims faults defendants for inadequately
investigating a matter before bringing charges or causing them
to be brought.

Schoolcraft’s claim faults the City Defendants

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for negligently informing NYPD officers of Schoolcraft’s
allegations against them.

The two types of claims are distinct.

Similarly, the City Defendants’ contention that this
claim is a ‘transmogrified’ version of Schoolcraft’s intentional
tort claim barred by New York law is unpersuasive.

The cases to

which City Defendants cite held that facts substantiating an
intentional assault or false arrest claims cannot be used to
plead a negligence claim.

See, e.g., Jenkins, 1992 WL 147647,

at *8 (plaintiff cannot rely on same set of facts substantiating
false arrest claim to plead negligence); Schmidt v. Bishop, 779
F. Supp. 321, 325 (S.D.N.Y. 1991) (allegations of assault cannot
be recast as negligence claim); Mitchell v. Cnty. of Nassau, No.
CV05-4957(SJF)(WDW), 2007 WL 1580068, at *13 (E.D.N.Y. May 24,
2007) (same); Naccarato v. Scarselli, 124 F. Supp. 2d 36, 45
(N.D.N.Y. 2000) (same); see also Marcano v. City of Schenectady,
38 F.Supp.3d 238, 265 n.23 (N.D.N.Y. Aug. 13, 2014) (dismissing
negligence claim where the complaint “contains no allegations of
negligent conduct, but merely reasserts the intentional tort
claims of assault and battery and intentional infliction of
emotional distress under a negligence heading.”).

Schoolcraft’s

is not an assault or wrongful arrest claim, and he pleads that
the City Defendants negligently leaked his IAB report.
claim is therefore not barred on this basis.
147

His

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ii.

Schoolcraft’s Claim is Dismissed
The existence of a “special relationship” between a

municipality and a plaintiff establishes a duty for the purposes
of a negligence claim.
2004).

Pelaez v. Seide, 2 N.Y.3d 186, 199 (N.Y.

A municipality creates a special relationship, inter

alia, if it “voluntarily assumes a duty that generates
justifiable reliance by the person who benefits from the duty.”
Id. at 200.

That is, if there is: “(1) an assumption by a

municipality, through promises or actions, of an affirmative
duty to act on behalf of the injured party; (2) knowledge on the
part of a municipality’s agents that inaction could lead to
harm; (3) some form of direct contact between the municipality’s
agents and the injured party; and (4) that party’s justifiable
reliance on the municipality's affirmative undertaking.”

Id. at

202 citing Cuffy v. City of New York, 69 NY2d 255, 260 (N.Y.
1987).

The first three elements are met.

In the tape-

recorded conversation between Schoolcraft and Lieutenant Brill
of the QAD, Brill makes clear that his team handles complaints
confidentially and take precautions when contacting
complainants.

Exhibit PP to the December 22, 2014 Declaration of

Suzanna P. Mettham (hereinafter “Mettham Decl. Ex. PP”) 2:4-10;
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3:15-18.

Such precautions included not speaking to complainants

at work and avoiding official meetings so as not to reveal the
complainant’s identity.

Id. at 2:1-3:2.

However, the undisputed facts establish that
Schoolcraft did not rely upon confidentiality in conjunction
with his reporting to IAB.

See Facts ¶ 54.

When Brill

expressed hesitation in having Schoolcraft appear before QAD
would “breach confidentiality, Schoolcraft responded that that
was not a problem, that “there’s no confidentiality,” “I'm not
being anonymous at all,” and that Schoolcraft “already notified
the command officer,” i.e., DI Mauriello.
at 3:3-5, 15-22.

Mettham Decl. Ex. PP

In opposition to this point, Schoolcraft

contends that “he was merely stating that he was willing to
provide his name to QAD, not that he was agreeing with the
notion that QAD could inform his supervisors that he was
reporting their misconduct.”

Pl.’s Mem. in Opp’n 70.

However,

Schoolcraft’s contention is plainly contradicted by his own
recording.

Indeed, Schoolcraft had already provided his name

and contact information, which is how Brill managed to reach
Schoolcraft.

See Mettham Decl. Ex. PP at 1:1-15.

Since

Schoolcraft did not rely upon the City’s undertaking of
confidentiality, his negligent disclosure claim fails as a
matter of law.
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E. Malicious Abuse of Process Claim is Dismissed

The elements of a claim under § 1983 for malicious
abuse of process are derived from state law.
41 F.3d 73, 80 (2d Cir. 1994).

Cook v. Sheldon,

Under New York law, an abuse of

process claim has three essential elements: (1) regularly issued
process, either civil or criminal, (2) an intent to do harm
without excuse or justification, and (3) use of the process in a
perverted manner to obtain a collateral objective.

Curiano v.

Suozzi, 63 N.Y.2d 113, 116 (N.Y. 1984).

Warrantless arrest cannot form the basis for this
claim.

Sforza v. City of New York, No. 07CIV6122DLC, 2009 WL

857496, at *17 (S.D.N.Y. Mar. 31, 2009) (dismissing malicious
abuse of process claim because Plaintiff’s warrantless arrest
“did not involve legal process.”); Shmueli v. City of New York,
03-CV-1195 (PAC), 2007 U.S. Dist. LEXIS 42012, at *10 (S.D.N.Y.
June 7, 2007) (“Without a warrant, a malicious prosecution claim
against the ADAs for pre-arraignment conduct does not lie
because any deprivation of [the plaintiff’s] liberty was not
effected “pursuant to a legal process.”).

Moreover, § 1983

liability is triggered by criminal, not civil, process.

150

See

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Alroy v. City of New York Law Dep’t, No. 13-CV-6740 VEC, 2014 WL
6632982, at *6 (S.D.N.Y. Nov. 24, 2014).

As Schoolcraft’s claim is based upon his civil
commitment without a warrant, it fails as a matter of law.

F. DI Mauriello’s Counterclaims are Dismissed

Plaintiff seeks dismissal of Mauriello’s state law
claims for tortious interference with an employment relationship
and prima facie tort.

See generally Pl.’s Mem. in Supp’t 25-34.

Mauriello alleges that Schoolcraft falsely reported that
Mauriello misclassified crimes and imposed arrest and summons
quotas at the 81st Precinct.

See Mauriello’s Answer to SAC,

Amended with Counterclaims, filed March 18, 2014 (“Mauriello
Answer and Counterclaims”), 11-17.

Mauriello further alleges

that Schoolcraft’s animus towards Mauriello was the sole
motivation for these reports.

Id.

New York courts apply the elements of tortious
interference with prospective economic advantage when evaluating
a claim of tortious interference relating to a prospective
employment opportunity.

See, e.g., Moynihan v. New York City

Health & Hospitals Corp., 993 N.Y.S.2d 260, 265 (N.Y. App. Div.
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2014); Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994)
(applying New York state law).

Under New York law, the elements

of a claim for tortious interference with prospective business
relations are: (1) business relations with a third party; (2)
the defendant’s interference with those business relations; (3)
that the defendant acted with the sole purpose of harming the
plaintiff or used dishonest, unfair, or improper means; and (4)
injury to the business relationship.

Nadel v. Play–By–Play Toys

& Novelties, Inc., 208 F.3d 368, 382 (2d Cir. 2000) (cited in
Thompson v. Bosswick, 855 F. Supp. 2d 67, 81-82 (S.D.N.Y.
2012)).

To survive summary judgment, DI Mauriello must have

pled, and there must exist genuine questions of fact regarding:
the existence of a prospective employment opportunity for DI
Mauriello at the NYPD;10 Schoolcraft’s direct interference with
that opportunity; and that Schoolcraft either acted for the sole
purpose of inflicting intentional harm upon DI Mauriello or
employed “wrongful means.”

Genuine issues of fact exist as to several elements of
the tortious interference claim.

DI Mauriello points to

10

DI Mauriello adopts Schoolcraft’s recitation of the elements of the
tortious interference claim and associated case law, but then recasts the
first element as “existence of an employment relationship.” See Mauriello’s
Mem. in Opp’n 12. That characterization does not match Schoolcraft’s
version, nor is it substantiated by the cases Mauriello cites. See Posner v.
Lewis, 18 N.Y.3d 566, 579 n.2 (N.Y. 2012) and Carvel Corp. v. Noonan, 3
N.Y.3d 182, 190 (N.Y. 2004). Indeed, the cause of action turns on the
“prospective” nature of the employment opportunity. Consequently,
Schoolcraft’s version is applied.

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testimony that he was not considered for promotion as a result
of Schoolcraft’s allegations against him, while Schoolcraft
contends that Mauriello had the support of NYPD leadership.
Compare Facts ¶ 321 with ¶¶ 320, 322.

There is also a factual

dispute as to whether Schoolcraft’s claims against him, or other
factors, resulted in DI Mauriello being passed over for
promotion.

Id.

As to the purpose element, however, Mauriello’s
contention that Schoolcraft reported him solely in order to harm
him is contradicted by DI Mauriello’s pleadings.

In his

Counterclaims, DI Mauriello inconsistently alleges both that
Schoolcraft falsely complained to QAD “purely for the sake of
getting revenge against Mauriello,” and that Schoolcraft hoped
to influence QAD in order to “create support for the claims
plaintiff was planning to assert in a lawsuit he intended to
bring against the NYPD.”

Compare Mauriello Answer and

Counterclaims, 11-12, ¶ 3(i) with ¶ 3(ii); see also Mauriello
Answer and Counterclaims, 13, ¶ 7 (alleging that Schoolcraft
acted “for the purpose of getting revenge against Steven
Mauriello -- interfering in his employment relationship with the
NYPD, and otherwise trying to destroy his career and reputation
-- while also creating false support for plaintiff’s lawsuit
against the NYPD.”) (emphasis added).
153

“Although Rule 8(d)(3)

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[of the Federal Rules of Civil Procedure] allows parties to
plead alternative legal theories, it does not permit
inconsistent assertions of facts within the allegations.”

XL

Specialty Ins. Co. v. Otto Naumann, Ltd., No. 12-CV-8224 DAB,
2015 WL 1499208, at *2 (S.D.N.Y. Mar. 31, 2015) (internal
quotations omitted and citations omitted); In re Livent, Inc.
Noteholders Sec. Litig., 151 F. Supp. 2d 371, 407 (S.D.N.Y.
2001) (Rule 8 does not “grant[] plaintiffs license to plead
inconsistent assertions of facts within the allegations that
serve as the factual predicates for an independent, unitary
claim”).

Here, the Mauriello’s inconsistent statements are used

to support the same counterclaim.

See Mauriello Answer and

Counterclaims, 11-16 (where the contradictory allegations are
tied to both the tortious interference and prima facie claims).

Similarly, Mauriello’s tortious claim fails as a
matter of law on the issue of whether Schoolcraft’s reports to
QAD constitute “wrongful means” under New York law.

“‘Wrongful

means’ include physical violence, fraud or mis-representation,
civil suits and criminal prosecutions.”

Friedman v. Coldwater

Creek, Inc., 321 F. App’x 58, 60 (2d Cir. 2009) (citing GuardLife Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191
(N.Y. 1980)).

Not all misrepresentations rise to the level of

“more culpable” conduct constituting “wrongful means.”
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Friedman, 321 F. App’x at 60.

Rather, “as a general rule, the

defendant’s conduct must amount to a crime or an independent
tort” to constitute wrongful means, such as breach of fiduciary
duty or defamation.

See Carvel Corp. v. Noonan, 3 N.Y.3d 182,

190 (N.Y. 2004); see also EBC I, Inc. v. Goldman Sachs & Co., 5
N.Y.3d 11, 19, (N.Y. 2005) (discussing breach of fiduciary as
constituting wrongful means); Phillips v. Carter, 872 N.Y.S.2d
22, 23 (N.Y. 2009) (noting that defamation would constitute
wrongful means).

Here, Schoolcraft’s allegations resulted in

formal investigations into DI Mauriello’s conduct and crime
reporting at the 81st Precinct, and subsequent charges against
DI Mauriello stemming from those investigations are currently
pending.

Facts ¶¶ 324-25.

A report stemming from the

investigations found “severe deficiencies in the overall crime
reporting process as a whole beginning with the initial
interaction of complainants attempting to file reports, the
supervisor’s review and finalization of the reports submitted
and continuing with inordinate delay in changing, improper
classifications.”

Facts ¶ 325.

The New York Court of Appeals has extended immunity
from civil suit under such circumstances.

In Brandt v.

Winchell, it ruled that “[i]f the one who sets the agencies in
motion is actuated by an evil motive[,] he may perhaps be
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subject to judgment in the forum of morals but he is free from
liability in a court of law.”

3 N.Y.2d 628, 635 (1958).

The

court explained 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.”

Id.

Brandt immunity remains good law today.

See Posner v. Lewis, 18 N.Y.3d 566, 570 (N.Y. 2012) (adhering to
the doctrine but declining to extend it to an individual that
extorted and blackmailed an official prior to reporting him);
Posner v. Lewis, 80 A.D.3d 308, 321, 912 N.Y.S.2d 53, 62 (N.Y.
App. Div. 2010) (quoting ATI, Inc. v. Ruder & Finn, Inc., 42
N.Y.2d 454, 460 (N.Y. 1977) and noting that the privilege
continues to be extended to “circumstances where allegations of
possible wrongdoing are acted upon by government agencies.”);
see also Van Buskirk v. Bleiler, 360 N.Y.S.2d 88, 90 (N.Y. App.
Div. 1974).

Perhaps anticipating this impediment to his
counterclaim, DI Mauriello includes a series of novel
allegations in his papers in opposition to Schoolcraft’s motion
for summary judgment, including contentions that Schoolcraft
personally downgraded complaint reports, orchestrated the
October 31 incident, misrepresented the status of the appeal of
his 2008 Performance Evaluation, falsely denied being aware of
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the reason he was placed on restricted leave, accused Mauriello
of placing him on restricted leave, contacted the media, falsely
claimed he cared about the community served by the 81st
Precinct, and falsely claimed he cared for his fellow officers,
all in furtherance of his scheme to tortiously infer with
Mauriello’s career opportunities.
Mem. in Opp’n 24-25.

See generally, Mauriello’s

None of these assertions were included in

Mauriello’s Answer and Counterclaims.

While they substantiate

the same umbrella claim for tortious interference, the novel
allegations fundamentally alter its scope, from one based on
instigating the October 7, 2009 investigation to one involving a
slew of actions that purportedly constitute wrongful means or
were taken for the sole purpose of harming DI Mauriello.
Mauriello’s Mem. in Opp’n 24-25.

See

“A complaint cannot be amended

merely by raising new facts and theories in [briefing], and
hence such new allegations and claims should not be considered
in resolving the [summary judgment] motion.”

Southwick Clothing

LLC v. GFT (USA) Corp., No. 99 CV 10452 (GBD), 2004 WL 2914093,
at *6 (S.D.N.Y. Dec. 15, 2004) (holding that a party could not
introduce a different contract or series of contracts as a
different basis for its breach of contract claim for the first
time in its memorandum of law in opposition to a summary
judgment motion) ; see also Rojo v. Deutsche Bank, 487 F. App’x
586, 588 (2d Cir. 2012) (A court is “justified” in brush aside
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further argument not alleged in complaint but raised for first
time in opposition to summary judgment); Tomlins v. Vill. of
Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 363 n.
9 (S.D.N.Y. 2011) (declining to consider facts raised for first
time in opposition to motion for summary judgment); Scott v.
City of New York Dep’t of Correction, 641 F.Supp.2d 211, 229
(S.D.N.Y. 2009), aff’d, 445 F. App’x 389 (2d Cir.2011) (same);
Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 219 (N.D.N.Y.
2008) (same).

As mentioned in the Prior Proceedings section above,
Mauriello’s motion to interpose counterclaims was initially
denied as it “would cause undue delay and prejudice to
Plaintiff.”

Schoolcraft v. City of New York, 296 F.R.D. 231,

238 (S.D.N.Y. 2013).

DI Mauriello was granted leave to

interpose his counterclaim following his motion for
reconsideration, in which he pointed to previously undisclosed
recordings now in evidence of the October 7, 2009 conversation
between Schoolcraft and his father, and contended that the
recording demonstrates Schoolcraft’s animus towards him.
Schoolcraft v. City of New York, 298 F.R.D. 134, 137 (S.D.N.Y.
2014).

By including different allegations in his opposition to

summary judgment, DI Mauriello is effectively seeking to craft a
new claim based on a series of facts known to him before March
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2014, and this time without filing a motion to replead as
required under the Federal Rules of Civil Procedure.
R. Civ. Pro. 15(a).

See Fed.

This interjection is impermissible, and

Mauriello’s counterclaim remains related to the October 7, 2009
investigation, as pled over a year ago.

Consequently, given DI

Mauriello’s admission that Schoolcraft did not act solely out of
animus towards him, and in light of Brandt immunity, Mauriello’s
tortious interference claim fails as a matter of law, and is
therefore dismissed.

For similar reasons, DI Mauriello’s prima facie tort
claim also fails.

Under New York law, the elements of prima

facie tort are: (1) an intentional infliction of harm; (2)
without excuse or justification and motivated solely by malice;
(3) resulting in special damages; (4) by an act that would
otherwise be lawful.

McKenzie v. Dow Jones & Co., 355 F. App’x

533, 536 (2d Cir. 2009) (internal quotations omitted); Evergreen
Pipeline Constr. Co. v. Merritt Meridian Const. Corp., 95 F.3d
153, 161 (2d Cir.1996); Belsky v. Lowenthal, 405 N.Y.S.2d 62, 64
(1978) aff’d, 47 N.Y.2d 820 (1979).

As discussed above, Mauriello’s pleadings allege that
Schoolcraft reported Mauriello in part to “create support for
the claims plaintiff was planning to assert in a lawsuit he
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intended to bring against the NYPD.”

See Mauriello Answer and

Counterclaims, 12, ¶ 3(ii); 13, ¶ 7.

The second element is

therefore not met.

As with the tortious interference claim,

Brandt immunity applies to this cause of action equally, and
protects Schoolcraft from suit.

Brandt, 3 N.Y.2d at 635.

Mauriello’s prima facie tort claim is therefore also denied as a
matter of law.

G. DI Mauriello Remains a Defendant

DI Mauriello contends that he is not liable for
several of Plaintiff’s claims, because he did not personally
engage in, or instruct subordinates to engage in, the conduct
which allegedly giving rise to Plaintiff’s § 1983 claims.

See

generally Mauriello’s Mem. in Supp’t 17-30.

“[I]t is well settled in this Circuit that personal
involvement of defendant in alleged constitutional deprivations
is a prerequisite to an award of damages under § 1983.”

Wright

v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); see also Farid v.
Ellen, 593 F.3d 233, 249 (2d Cir. 2010).

Consequently, summary

judgment in DI Mauriello’s favor is warranted where the factual
record indisputably establishes his lack of involvement.

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i. False Arrest and Use of Force Claims, and their State Law
Analogues against DI Mauriello are Dismissed
The record establishes that DI Mauriello was not
present when Schoolcraft was arrested, since he remained outside
of Schoolcraft’s apartment after Schoolcraft left his apartment
and began walking towards the ambulance.

Facts ¶¶ 149-50.

He

was indisputably not present for the second entry when
Schoolcraft was declared an EDP and handcuffed.

Facts ¶ 157.

Schoolcraft nevertheless contends that DI Mauriello
remains liable because he “set in motion the series of events at
the 81st Precinct designed to prevent Schoolcraft” from
reporting on corruption.

Pl.’s Mem. in Opp’n 89.

Plaintiff

relies on one case, McDermott Gonzalez v. Bratton, in which a
senior officer order his subordinate to perform an
unconstitutional search.

147 F. Supp. 2d 180, 202 (S.D.N.Y.

2001) aff’d, 48 F. App’x 363 (2d Cir. 2002).

Plaintiff does not address the factual distinctions
between McDermott and this case.

In McDermott, whether the

defendant ordered his subordinate to conduct the search was in
dispute and the subordinate officer testified that the defendant
had ordered him.

Id.

Here, by contrast, there was no testimony

that Mauriello ordered Schoolcraft’s arrest.
161

Schoolcraft

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contends that Mauriello ordered Captain Lauterborn to “take care
of this” when the officers first spoke to Schoolcraft during the
First Entry and ordered Captain Lauterborn to stop Schoolcraft
when he turned back from the ambulance and reentered his
apartment.

See Pl.’s Mem. in Opp’n 89; Facts ¶ 161.

The record does not support the conclusion that the
subsequent arrest was at Mauriello’s behest notwithstanding the
statements Plaintiff quotes.

Rather, as Plaintiff’s recording

demonstrates, Deputy Chief Marino and Captain Lauterborn
reentered Schoolcraft’s home, and Deputy Chief Marino declared
Schoolcraft an EDP.

Facts ¶¶ 158-59.

It was only after the EDP

designation that Schoolcraft was arrested, assaulted, and
imprisoned.

Facts ¶ 160.

This intervening event is a

significant distinction as to McDermott that is fatal to
Plaintiff’s argument.

Consequently, Mauriello is not liable for

the false arrest claim as a matter of law, and he is also not
liable for the use of force claim.

ii.

Unlawful Search Claim Against DI Mauriello is Dismissed
Similarly, the record establishes that DI Mauriello

was not present when Schoolcraft’s apartment was searched.
Facts ¶ 171.

This claim therefore also fails as a matter of

law.
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iii. Failure to Intercede Claim Against DI Mauriello
Survives Summary Judgment
Referencing the same facts, DI Mauriello further
contends that he cannot be liable to Schoolcraft as a matter of
law on the failure to intercede claim.

The TAC contains the

following allegation:
Defendants further violated plaintiff’s constitutional
rights when they failed to intercede and prevent the
violation or further violation of plaintiff’s
constitutional rights and the injuries or further
injuries caused as a result of said failure.

TAC ¶ 277.

The failure to intercede claim is not limited to
events occurring during the Second Entry, to which DI Mauriello
was not a party.

The allegation can also fairly extend to the

Fourth Amendment claims discussed above, which survive summary
judgment.

See Section IV.A of this Opinion.

Therefore, DI

Mauriello remains a defendant with respect to this claim.

iv.

Warrantless Entry Claim against DI Mauriello Survives
Summary Judgment
Finally, the claim arising out of the First Entry,

namely the warrantless entry claim, survives against DI

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Mauriello.

DI Mauriello was indisputably present during that

interaction, and an issue of fact remains as to whether DI
Mauriello or Deputy Chief Marino were in charge prior to
Schoolcraft’s EDP designation.

See Facts ¶ 159.

DI Mauriello

also remains a defendant with respect to this claim.

H. Claims with Respect to Other NYPD Officer Defendants

City Defendants contend that Plaintiff’s claims
against several individual defendants should be dismissed
because Plaintiff does not establish their personal involvement
with respect to certain claims.

See generally, City Defs.’ Mem.

in Supp’t 15-18; City Defs.’ Reply Mem. 24-26.

i. Captain Trainor is Dismissed as a Defendant
City Defendants contend that Plaintiff has not
properly alleged excessive force and assault and battery claims
against Captain Trainor.

City Defs.’ Mem. in Supp’t 15.

Plaintiff is not alleging these claims against Captain Trainor.
Rather, his claim against Captain Trainor centers on his
involvement in the NYPD visits to Schoolcraft’s Johnstown
residence, not the events in Schoolcraft’s apartment on October
31, 2009.

See TAC ¶ 216; see also Pl.’s Mem. in Opp’n 31.

Since Schoolcraft’s First Amendment claim with respect to his
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post-suspension speech is dismissed, see Section IV.B.ii of this
Opinion, his claim against Trainor also fails.

ii.

Captain Lauterborn Remains a Defendant
City Defendants contend that Plaintiff’s excessive

force and assault and battery claims against Captain Lauterborn
should be dismissed for lack of a “specific allegation that
Lauterborn used force against him.”
25.

City Defs.’ Reply Mem. 24-

The TAC alleges, in relevant part, that:
[S]everal defendant police officers, including
defendants LT. WILLIAM GOUGH, SGT. KURT DUNCAN, and
LT. CHRISTOPHER BROSCHART, pulled plaintiff out of his
bed, physically assaulted him, tore his clothes as
they threw him to the floor, illegally strip-searched
him and violently handcuffed him with his arms behind
his back, causing excruciating pain to his wrists,
shoulders, arms, neck and back.

TAC ¶ 167 (emphasis added).

Captain Lauterborn falls under the

category of “defendant police officers” and the facts support
the allegation that that Captain Lauterborn was indeed one of
those officers engaging in the behavior alleged above.
e.g., Facts ¶ 160.

See,

Therefore, the claims against Captain

Lauterborn survive summary judgment.

iii. Assistant Chief Nelson Remains a Defendant
City Defendants next contend that Assistant Chief
Nelson should be dismissed as a defendant because “no evidence

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has been discovered that Gerard Nelson in fact was aware of, or
authorized, Chief Marino’s actions on October 31, 2009 beyond
Plaintiff’s suppositions.”

City Defs.’ Mem. in Supp’t 15-16.

In the alternative, City Defendants contend that qualified
immunity shields Chief Nelson, since he reasonably relied upon
his officers’ statements with respect to the October 31 events.
Id.

As the Second Circuit noted in Wright v. Smith:
[A] defendant who occupies a supervisory position may
be found personally involved in the deprivation of a
plaintiff’s constitutionally protected liberty
interests in several ways:
The defendant may have directly participated in the
infraction. A supervisory official, after learning of
the violation through a report or appeal, may have
failed to remedy the wrong. A supervisory official
may be liable because he or she created a policy or
custom under which unconstitutional practices
occurred, or allowed such a policy or custom to
continue. Lastly, a supervisory official may be
personally liable if he or she was grossly negligent
in managing subordinates who caused the unlawful
condition or event.
[. . .]
[However a supervisor cannot] be held personally
responsible simply because he was in a high position
of authority . . .
21 F.3d 496, 501 (2d Cir. 1994) (internal quotations and
ellipses omitted).

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Plaintiff contends that Assistant Chief Nelson was
“kept informed” of the October 31 events by DI Mauriello, was
the commanding officer under whose authority the NYPD planned to
suspended Schoolcraft, and signed off on the disciplinary
Charges and Specifications outlining Schoolcraft’s purported
misconduct.

Pl.’s Mem. in Opp’n 11-12.

The parties dispute

Assistant Chief Nelson’s level of involvement with respect to
the NYPD’s conduct on the 31st of October and as to the NYPD’s
subsequent interactions with Schoolcraft.

Facts ¶ 105.

Contrary to the City Defendants’ contentions, Schoolcraft has
adduced evidence that may lead a reasonable jury to conclude
that that Assistant Chief Nelson was aware of his subordinates’
allegedly illegal conduct against Schoolcraft and failed to
correct that conduct.

See Facts ¶ 105.

The remaining basis for summary judgment dismissing
Assistant Chief Nelson, which Plaintiff does not address, is
qualified immunity.

As discussed above, qualified immunity

attaches to “conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”

Kerman, 261 F.3d at 236.

Assistant Chief

Nelson is immune as a matter of law if “a reasonable juror would
have been compelled to accept the view” that either the NYPD’s
conduct was constitutional or that Assistant Chief Nelson lacked
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the information necessary to conclude that the NYPD’s conduct
was unconstitutional.

See generally the Fourth Amendment Claim

discussion in Section IV.A of this Opinion; see also Zellner,
494 F.3d at 370; Golphin v. City of New York, No. 09 CIV. 1015
BSJ, 2011 WL 4375679, at *3 (S.D.N.Y. Sept. 19, 2011).
determination presents a factual dispute.

This

Consequently,

Assistant Chief Nelson is not dismissed as a defendant.

iv.

Lieutenant Caughey Remains a Defendant
City Defendants contend that Lieutenant Caughey should

be dismissed as a defendant because “it is clear that Caughey
had no personal involvement in any of the claimed misconduct.”
City Defs.’ Mem. in Supp’t 16.

Plaintiff disagrees, contending

that Caughey issued retaliatory command disciplines against him,
referred him to the Early Intervention Unit, confiscated and
kept Schoolcraft’s memo book for several hours, menaced
Schoolcraft with his gun during his October 31, 2009 shift, and
conspired with Mauriello to retaliate against Schoolcraft.

See

generally Pl.’s Mem. in Opp’n 32-38.

As discussed above, Schoolcraft’s First Amendment
claim extends to his pre-suspension speech, and therefore so too
do his allegations with respect to Caughey’s alleged
‘retaliatory’ conduct.

Therefore, Caughey remains a defendant.
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VI.

CLAIMS RELATING TO JAMAICA HOSPITAL MEDICAL CENTER

A. Section 1983 Claims against JHMC are Dismissed

Plaintiff brought involuntary confinement, due process
violation and “municipal liability” claims pursuant to 42 U.S.C.
§ 1983 against Jamaica Hospital.

See TAC ¶¶ 285-290, 296-303.

The statute provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress....
42 U.S.C. § 1983.

Section 1983 allows a plaintiff to bring claims for
constitutional law violations against a “person.”

Id.

Jamaica

Hospital correctly notes that a hospital is generally not a
“person” for the purposes of § 1983.

Kearse v. Lincoln Hosp.,

No. 07 CIV. 4730 (PAC JCF), 2009 WL 1706554, at *2 (S.D.N.Y.
June 17, 2009); Williams v. City of New York, No. 03 CIV. 5342
RWS, 2005 WL 901405, at *1 (S.D.N.Y. Apr. 19, 2005); Melani v.

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Bd. of Higher Educ. of City of New York, No. 73 CIV. 5434, 1976
WL 589, at *2 (S.D.N.Y. June 23, 1976).

Consequently, direct

claims against JHMC under § 1983 fail as a matter of law.

Section 1983 liability is premised on state action.
See 42 U.S.C. § 1983 (requiring that the “person” act “under
color” of state law).

Though private conduct falls outside the

purview of the statute, private entities can be can still be
held liable as “state actors” where the conduct leading to the
constitutional violation is “fairly attributable” to a
municipality.

See Sybalski v. Indep. Grp. Home Living Program,

Inc., 546 F.3d 255, 257 (2d Cir. 2008).

Such conduct includes

when the: (1) the private entity acts pursuant to the “coercive
power” of the state or is “controlled” by the state (“the
compulsion test”); (2) when the state provides “significant
encouragement” to the private entity, the entity is a “willful
participant in joint activity with the [s]tate,” or the entity’s
functions are “entwined” with state policies (“the joint action
test” or “close nexus test”); or (3) when the entity “has been
delegated a public function by the [s]tate,” (“the public
function test”).

Id. (internal citations and quotations

omitted).

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Plaintiff contends material questions of fact warrant
denial of JHMC’s summary judgment motion on the issue of state
action.

Specifically, Schoolcraft contends that JHMC’s EMTs

jointly decided along with City Defendants to declare
Schoolcraft an EDP and forcibly transport him to Jamaica
Hospital, and JHMC’s decision to involuntarily commit
Schoolcraft was significantly encouraged by City Defendants.
Pl.’s Mem. in Opp’n 101.

He also contends that JHMC satisfies

the public function test because Schoolcraft was admitted in
order to protect the public.

Pl.’s Mem. in Opp’n 107.

In

support of his position, Plaintiff quotes a footnote in this
Court’s 2011 opinion on JHMC’s motion to dismiss, noting that:
[I]t does appear that JHMC is a state actor based on
Plaintiff’s allegations that the hospital’s employees
acted under the compulsion of, and in concert with,
the NYPD. Furthermore, because Plaintiff contends
that JHMC was used as a detention facility, JHMC can
be seen as a state actor through its assumption of a
traditional government function.”
Schoolcraft, 2011 WL 1758635, at *2 n.2 (internal citations
and quotations omitted).

While perhaps sufficient to

withstand a motion to dismiss, Plaintiff’s state actor
argument fails in light of the record.

There were two purportedly unconstitutional actions
taken against Schoolcraft: his designation as an EDP, and his
involuntary hospitalization following arrival at JHMC.
172

See

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Pl.’s Mem. in Opp’n 104-105 (contending that Jamaica Hospital
and its employees “are state actors because of the joint action
taken in Officer Schoolcraft’s apartment and because of the
significant encouragement by the NYPD and the EMTs to Jamaica
Hospital’s other staff to involuntarily commit him.”).

Neither

of those can fairly construed as taken under color of state law.

Plaintiff’s own recording unambiguously reflect that
Deputy Chief Marino, not JHMC’s EMTs, declared Schoolcraft an
EDP.

Facts ¶ 158.

The EMTs were not present when the

designation was made.

Facts ¶ 154.

Plaintiff’s quotes from

Captain Lauterborn’s and Lieutenant Broschart’s depositions do
not contradict the fact that Marino classified Schoolcraft an
EDP, because none of the deponents testified that the EMTs made
the EDP designation.

Indeed, EMTs cannot make EDP

determinations, and to do so would constitute an ultra vires act
that would not trigger JHMC’s liability.

See Declaration of

Gregory J. Radomisli dated January 30, 2015 (hereinafter
“Radomisli Decl.”) Ex. K 156 (“NYPD is the only agency [the
EMTs] work with that can declare someone an EDP.”); Chonich v.
Wayne Cnty. Cmty. Coll., 973 F.2d 1271, 1280 (6th Cir. 1992)
(Community college was not liable, under § 1983, for alleged
violations of college administrators’ civil rights where ultra
vires actions of an employee caused the constitutional harm);
173

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see also Doe v. Guthrie Clinic, Ltd., 710 F.3d 492, 494 (2d
Cir.) (noting that “direct corporate liability generally . . .
is not implicated by the ultra vires acts of employees”); cf.
Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670,
697 (1982) (holding that sovereign immunity is not implicated
since “action of an officer of the sovereign . . . beyond the
officer’s statutory authority is not action of the sovereign”)
(internal quotations and citations omitted).

Finally,

Schoolcraft’s responses to Mauriello’s 56.1 statement includes
the admission that “Marino declared him an EDP.”
Consolidated 56.1 Statement, ¶ 119.

Mauriello’s

In sum, there is no genuine

issue of fact as to whether JHMC EMTs declared Schoolcraft an
EDP.

They did not.

Similarly, no issue of material fact exists with
respect to whether JHMC’s decision to hospitalize Schoolcraft
constituted state action.

Schoolcraft was taken to JHMC’s

emergency room following Marino’s EDP designation.
175.

See Facts ¶

His hospital chart reflected the JHMC’s EMT’s statement

that he was “behaving irrationally.”

Facts ¶ 186.

He was

triaged and a psychiatric evaluation was performed at the
request of an emergency room physician at JHMC.
Facts ¶¶ 175, 183, 187.

See generally

The record does not indicate that the

emergency room doctor spoke to the NYPD prior to requesting the
174

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psychiatric consult.

See Facts ¶ 187.

The record does,

however, indicate that the psychiatric resident that conducted
an initial interview with Schoolcraft was informed, or perhaps
misinformed, by the NYPD that Schoolcraft had behaved in a
bizarre manner, had cursed at his supervisor, was receiving
psychiatric treatment and had his gun taken away, and had
barricaded himself in his home on October 31st.
192-93.
file.

See Facts ¶¶

She documented these NYPD statements in Schoolcraft’s

Id.

He was subsequently transferred to JHMC’s

psychiatric emergency department and Dr. Bernier took over his
care.

See generally, Facts ¶¶ 201-26.

While in the psychiatric

emergency department, Schoolcraft was examined by Dr. Tariq,
whose also purportedly spoke with NYPD Sergeant James regarding
Schoolcraft’s behavior.

Facts ¶ 207.

It was Dr. Bernier,

however, who made the decision to admit him pursuant to New
York’s Mental Hygiene Law.

Facts ¶ 237, 241, 244.

She

indisputably did not speak to City Defendants, but reviewed
Schoolcraft’s file memorializing other JHMC’s staff
conversations with the NYPD.

Contrary to Schoolcraft’s position, a state actor
indirectly misinforming a private physician as to a patient’s
behavior is not conduct that rises to the level of “significant
encouragement.”

See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)
175

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(describing “significant encouragement” standard).

Providing

factual background to a physician is not tantamount to
encouraging that physician to undertake a certain action.

See

McGugan v. Aldana-Bernier, 752 F.3d 224, 230 (2d Cir. 2014)
cert. denied, No. 14-8048, 2015 WL 1400892 (U.S. Mar. 30, 2015)
(observing that state actors “did not request, much less compel”
involuntary hospitalization).

The link between the City Defs.’

statement and the involuntary hospitalization decision is all
the more attenuated because that decision was taken by Dr.
Bernier without any direct conversation with a state actor,
several days after the state actor statements were documented.
See Facts ¶¶ 230-32.

“It is not enough, however, for a

plaintiff to plead state involvement in some activity of the
institution alleged to have inflicted injury upon a plaintiff;
rather, the plaintiff must allege that the state was involved
with the activity that caused the injury giving rise to the
action.”

Sybalski, 546 F.3d at 257-58 (internal quotations and

citations omitted).

To adopt Plaintiff’s position would be to

convert any independent medical decision into state action, so
long as it was partly based upon the representations, or in this
case misrepresentations, of a state actor.

In support of his “significant encouragement”
argument, Plaintiff cites two cases.
176

In Tewksbury v. Dowling, a

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private physician failed to conduct an independent examination,
relying instead solely upon a state physician’s determinations.
169 F. Supp. 2d 103, 109 (E.D.N.Y. 2001).

Here, Dr. Bernier and

her non-state-actor colleagues, Drs. Lwin, Patel, Tariq, and
Heron, indisputably examined Schoolcraft throughout his hospital
stay.

See generally Facts ¶ 227.

Plaintiff’s contention that

the level of care and attention paid him by these private
physicians fell short of appropriate standards cannot alter the
fact that he was examined by a non-state physician who made the
decision to commit him.

In Ruhlmann v. Ulster Cnty. Dep’t of

Soc. Servs., a private hospital had initially cleared a patient
that had been hospitalized as an EDP, but reversed its clearance
following pressured by state actors.
(N.D.N.Y. 2002).

234 F. Supp. 2d 140, 163

Here, Dr. Bernier’s opinion was not changed by

direct conversations with state actors.

Moreover, the

extraordinary interventions of state actors who had a close
working relationship with the private physicians in Ruhlmann are
not found in this record, where state involvement in the
commitment decision is limited to two written statements by
police officers in the patient’s chart regarding Schoolcraft’s
mental state and behavior.

See id. at 161-63.

Relatedly, Dr.

Bernier held a position of authority relative to her colleagues
who had spoken to the NYPD.

She was not compelled to adopt her

residents’ impressions and notations, indeed she was not even
177

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obligated to credit them.

Facts ¶¶ 235, 239.

Conversely, the

involuntary confinement decision in Ruhlmann was made by a
relatively junior member of the private hospital’s staff,
following pressure from state actors and non-state-actor
colleagues in positions of relative seniority.

See generally

Ruhlmann, 234 F. Supp. 2d at 147-57, 161-64.

To find “significant encouragement” on basis of the
NYPD officer statements would do violence to the underlying
purpose of the test, which is to ascribe state actor status only
where the private conduct is “fairly attributable" to the state.
McGugan, 752 F.3d at 229.

Dr. Bernier’s decision to admit

Schoolcraft is not fairly attributable to the state by virtue of
Schoolcraft’s chart that contained two statements by state
actors.

Plaintiff also contends that JHMC is a state actor
under the public functions test, since JHMC functioned as a
detention facility with respect to Schoolcraft and since Dr.
Bernier testified that she considered public safety when
admitted Schoolcraft.

Pl.’s Mem. in Opp’n 107-09.

“The fact

that [plaintiff] was brought to the hospital [in] police custody
and was released from the hospital into police custody is
insufficient to transform this private hospital and its staff
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into state actors for section 1983 purposes.”

Morse v. City of

New York, No. 00 CIV. 2528 (TPG), 2001 WL 968996, at *8
(S.D.N.Y. Aug. 24, 2001).

Similarly, considering harm to others

when admitting a patient is consistent with the Mental Hygiene
Law, and consequently, no state action attaches on that basis.
Antwi v. Montefiore Med. Ctr., No. 14 CIV. 840 ER, 2014 WL
6481996, at *5 (S.D.N.Y. Nov. 18, 2014) (“[I]t is well-settled
in the Second Circuit that a private hospital confining a
patient under the New York MHL is not acting under color of
state law.”) (citing McGugan v. Aldana–Bernier, 752 F.3d 224,
229 (2d Cir.2014) (reaffirming the principle that “forcible
medication and hospitalization . . . by private health care
providers” cannot be attributed to the state); Hogan, 346 Fed.
App’x at 629 (affirming district court's grant of summary
judgment to private hospital and physician that involuntarily
committed patient, finding that conduct could not be attributed
to the state); see generally Doe v. Rosenberg, 166 F.3d 507 (2d
Cir. 1999) (holding that private health care professionals and a
private hospital had not functioned as state actors when they
involuntarily committed a patient to their psychiatric ward)).

Since JHMC was not a state actor, and also does not
qualify as a “person” for the purposes of § 1983, Schoolcraft’s
claims for involuntary confinement, due process violations, and
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municipal liability against JHMC fail as a matter of law.

TAC

¶¶ 285-90, 296-315.

B. State Law Medical Malpractice Claims against JMHC Survive
Summary Judgment

The TAC contains two state law negligence claims
against JHMC: a medical malpractice claim and a negligence
hiring, supervision, training and retention claim.

TAC ¶¶ 365-

68 (malpractice claim), 369-372 (negligent supervision claim).
JHMC makes several arguments in favor of summary dismissal of
Plaintiff’s negligence claims against the hospital.

i. Expert Testimony Raises Triable Issues
JHMC argues Plaintiff’s expert reports are inadequate
as a matter of law, and warrant dismissal of the medical
malpractice claim.

Under New York law, a medical malpractice

claim requires a showing of: (1) a deviation or departure from
accepted practice, and (2) evidence that such departure was a
proximate cause of injury or damage.

Stukas v. Streiter, 918

N.Y.S.2d 176, 184 (N.Y. App. Div. 2011) (internal quotations and
citations omitted).

Expert medical opinions are typically

required to substantiate or defeat such claims.
180

See Fiore v.

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Galang, 64 N.Y.2d 999, 1001, 478 N.E.2d 188, 189 (1985); Stukas,
918 N.Y.S.2d at 184; see also Sitts v. United States, 811 F.2d
736, 739 (2d Cir. 1987) (“It is well established in New York law
that unless the alleged act of malpractice falls within the
competence of a lay jury to evaluate, it is incumbent upon the
plaintiff to present expert testimony in support of the
allegations to establish a prima facie case of malpractice.”)
(internal quotations and citations omitted); Bender v. Lowe, No.
08 CV. 0334 BSJ, 2011 WL 4001147, at *8 (S.D.N.Y. Aug. 31, 2011)
aff’d, 531 F. App’x 142 (2d Cir. 2013) (In determining whether a
physician’s decision to commit someone involuntarily comports
with due process, the plaintiff bears the burden of producing
evidence, generally in the form of expert testimony, regarding
the applicable medical standards and the defendant's alleged
failure to meet those standards.”) (internal quotations and
citations omitted).

JHMC contends that Plaintiff’s expert reports
improperly omit the standard of care which Plaintiff alleges was
violated and failed to establish a substantial departure from
accepted standards of care.
Supp’t 24-29.

See generally, JHMC’s Mem. in

In response to JHMC’s contention, Plaintiff does

not deny the necessity of expert testimony on this issue.
Compare Pl.’s Mem. in Opp’n 119 with Sitts (noting possible
181

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exception to expert testimony requirement where “act of
malpractice falls within the competence of a lay jury to
evaluate”).

Rather, Plaintiff contends that the report authored

by Dr. Lubit, one of two experts for Plaintiff, “sets forth the
governing standards, sets forth the established procedures for
examining patients, and explains in detail the reason why the
examinations of Officer Schoolcraft grossly departed from the
standard of care.”

Pl.’s Mem. in Opp’n 119 (citing PMX 30

(hereinafter “Lubit Rpt.”) 10-21).

Courts dismissed malpractice claims on summary
judgment where the plaintiff’s expert fails to identify the
standard of care which was allegedly violated.

See Bender v.

Lowe, No. 08 CV. 0334 BSJ, 2011 WL 4001147, at *9 (S.D.N.Y. Aug.
31, 2011) aff’d, 531 F. App’x 142 (2d Cir. 2013) (granting
summary judgment where the plaintiff’s expert “only states that
defendants’ decisions departed from accepted standards of
medical/psychiatric care; he does not conclude that the
treatment decisions constituted a substantial departure from
such standards, as required by case law.”) (internal citation
and quotations omitted); Algarin v. New York City Dep’t of
Correction, 460 F. Supp. 2d 469, 477 (S.D.N.Y. 2006) aff’d, 267
F. App’x 24 (2d Cir. 2008) (“An anecdotal account of one
expert’s experience, however extensive or impressive the numbers
182

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it encompasses, does not by itself equate to a methodology, let
alone one generally accepted by the scientific community.”)
(internal quotations and citations omitted); Zeak v. United
States, No. 11 CIV. 4253 KPF, 2014 WL 5324319, at *9 (S.D.N.Y.
Oct. 20, 2014) (granting summary judgment where plaintiff’s
expert “repeatedly disclaimed the ability to define the standard
of care”).

In his report for Plaintiff, Dr. Lubit wrote:
“[a]ccepted clinical practice entails gathering all available
relevant, significant information; applying current scientific
knowledge; and analyzing the situation via structured
professional judgment, as taught in residency programs.”
10.

Id. at

Dr. Lubit describes these as “three bases for accepted

clinical decision making.”

Id.

When asked whether he described

the applicable standard of care in his report, Dr. Lubit
responded:
It would be almost impossible to, because then you’d
have to lay out what one would have to do exactly in
every contingency. It’s—I mean I do to some extent
describe the standard of care and what doctors are
supposed to do and how they don’t do it. But I didn’t
write, a—I didn’t write a book chapter on what the
standard of care is. I put down key aspects of the
standard of care and then explained why I did not
think the doctors met that standard of care.

Radomisli Decl. Ex. AA, pp. 49-51.

183

The balance of Dr. Lubit’s

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report details how JHMC’s physicians: (1) failed to gather
adequate information; (2) failed to reasonably interpret the
information they had; (3) failed to independently establish the
truth of Schoolcraft’s statements; (4) failed to establish
whether Schoolcraft’s beliefs raised a risk of dangerous
behavior; (5) evidenced a lack of familiarity with appropriate
commitment policy; and (6) evidenced a lack of knowledge as to
the proper methodology for assessing dangerousness.
10-11.

Lubit Rpt.

According to Dr. Lubit, “[t]he failure of any of these

six means that the work was below accepted professional
standards.”

Id. at 11.

Unlike the reports in Bender and Algarin, Dr. Lubit’s
report adequately sets out the standard of care and his opinion
that JHMC’s doctors substantially departed from that standard.
Compare Bender, 2011 WL 4001147, at *9 and Algarin, 460 F. Supp.
2d at 477 with Lubit Rpt. 10-21 (which can be fairly read as
stating that an appropriate standard of care required the
opposite of what JHMC had done, i.e.,: (1) gathering adequate
information about what Mr. Schoolcraft had done and believed
concerning his allegation of corruption by superiors; (2)
reasonably interpreting the information gathered; (3) calling
and speaking with people in the Police Department’s Internal
Affairs Bureau in order to see if Schoolcraft’s statements of
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corruption were paranoid, or a misperception, or were justified;
(4) determining whether his beliefs were likely to lead him to
engage in dangerous behavior; (5) being familiar with state law
and JHMC’s written policies regarding involuntary confinement;
(6) being familiar with and applying proper methodology for
assessing dangerousness).

Contrary to JHMC’s contention, the court in Bender did
not dismiss a malpractice claim because the Plaintiff’s expert
failed to cite authority for the contention that a physician
must corroborate police reports or third party accounts.
Rather, the Bender court dismissed the claim because the
plaintiff “produced no expert report establishing that this
[failure to verify] constituted a substantial departure from
generally accepted medical standards.”
at *10.

Bender, 2011 WL 4001147,

In contrast to Bender, Dr. Lubit here stated that

“[f]ailing to call key collaterals (in this case, IAB) is
outside standard practice,” as were the other criticisms he
identified.

Lubit Rpt. 10-21.

Unlike the expert in Zeak, Dr.

Lubit did not disclaim his ability to define the standard of
care.

Rather, he testified that his report described where the

standard of care was violated and that he did not provide a
lengthy description of the standard of care under myriad set of
facts.

See Radomisli Decl. Ex. AA, pp. 49-51.
185

This is not, as

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JHMC would have it, a mere disagreement over a diagnosis or a
course of treatment.

Dr. Lubit’s report states that

Schoolcraft’s treatment fell below the required standard of
care.

That Dr. Lubit’s report does not have a section titled

“standard of care” is no more fatal to his report than it is to
the report of Dr. Levy, JHMC’s expert.

Compare Lubit Rpt. with

Radomisli Decl. Ex. JJ (hereinafter “Levy Rpt.”).

Dr. Levy

states that “I opine, with a reasonable degree of medical
certainty that Jamaica Hospital did not deviate from acceptable
community standards of care and did not violate the plaintiff's
rights.”

Levy Rpt. 6.

He then sets out JHMC’s acts and his

evaluation of their appropriateness.
6-7.

See generally, Levy Rpt.

He does not, however, proffer a discrete standard to which

JHMC physicians adhered.

JHMC also notes that Dr. Lubit never claims the course
of treatment fell “substantially below medical standards.”
e.g., JHMC’s Mem. in Supp’t 26 (emphasis added).

See,

Previous

cases, in granting summary judgment in the physician-defendant’s
favor, have noted that the departure was not “substantial” among
the reasons for granting summary judgment.

See, e.g., Kulak v.

City of New York, 88 F.3d 63, 75 (2d Cir. 1996); Kraft v. City
of New York, 696 F. Supp. 2d 403, 414 (S.D.N.Y. 2010) aff’d, 441
F. App’x 24 (2d Cir. 2011); Bender, 2011 WL 4001147, at *10.
186

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Rather than interpreting the above-cited opinions as turning on
the existence of the word “substantial” in a plaintiff’s expert
report, the better reading is that they require evidence of a
substantial departure, which creates a question of fact for a
jury to decide.

See, e.g., Altamuro v. Cnty. of Nassau, 33 F.

App’x 556, 561 (2d Cir. 2002) (Plaintiff “presented no evidence
that the defendants’ conduct fell substantially below generally
accepted standards in the medical community.”) (emphasis added);
Kraft, 696 F.Supp.2d at 415 (“Because plaintiff fails to offer
any evidence that the doctor defendants’ diagnoses, actions, and
subsequent determinations . . . fell substantially below
accepted medical standards, no reasonable jury could conclude
that they violated plaintiff’s substantive due process rights
under the Fourteenth Amendment.”) (emphasis added); Hogan v.
A.O. Fox Mem’l Hosp., 346 F. App'x 627, 630 (2d Cir. 2009)
(allowing summary judgment where the plaintiff “offers no
evidence as to the generally accepted medical practices
applicable to a physician’s recommendation of involuntary
commitment”) (emphasis added); Bender, 2011 WL 4001147, at *9
(“Plaintiff’s expert report does not describe any professional
standards governing the involuntary admission of a patient for
psychiatric care.”).

187

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“A court’s duty . . . is not to reject opinion
evidence because non-lawyer witnesses answer questions that are
not hypothetical or fail to use the words and phrases preferred
by lawyers and judges, but rather to determine whether the whole
record exhibits substantial evidence that there was a departure
from the requisite standard of care.”

Knutson v. Sand, 725

N.Y.S.2d 350, 354-55 (N.Y. App. Div. 2001).
with this principle.

Kulak is consistent

In Kulak, the Second Circuit noted an

earlier opinion, where it had “decided that an expert affidavit
asserting that the treating physicians made incorrect and
objectively unreasonable decisions created an issue of fact for
trial regarding whether the doctors acted within the realm of
professional competence in treating the plaintiff.”

88 F.3d 63,

76 (citing Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir.
1995)).

The plaintiff’s expert in Kulak failed to base his

opinion on the conditions of the plaintiff at the time of the
alleged malpractice: in other words, the report did not raise an
issue of material fact regarding the decision to commit the
plaintiff at the time of his commitment.

Tellingly, the

plaintiff’s expert report in Kulak did, in fact, contain the
phrase “substantially departed,” yet the Second Circuit
nevertheless affirmed summary judgment for lack of evidence of
the substantial departure.

Id. at 75; cf. Zeak v. United

States, No. 11 CIV. 4253 KPF, 2014 WL 5324319, at *9 (S.D.N.Y.
188

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Oct. 20, 2014) (noting that what matters is whether, “taken as a
whole, the record contains evidence that there was a departure
from the relevant standard of care . . . Plaintiff’s expert was
not required to use specific terms of art in his expert report
or deposition testimony.”).

By contrast, Plaintiff’s second expert report,
authored by Dr. Halpren-Ruder (“Dr. Ruder”), is inadmissible.
Dr. Ruder’s report is divided into two parts.

See PMX 36.

Part

One relates to the care rendered by JHMC’s EMTs prior to
Schoolcraft’s arrival at JHMC.

Id. at 2.

Section 9.59 of the

New York Mental Hygiene Law extends immunity to EMTs from suits
for damages that did not result from the EMTs’ gross negligence.
A municipal employee’s immunity extends to the municipality.
Shinn v. City of New York, 884 N.Y.S.2d 466, 467 (N.Y. App. Div.
2009) (citing Mental Hygiene Law § 9.59); cf. Woody v. Astoria
Gen. Hosp., Inc., 264 A.D.2d 318, 319, 694 N.Y.S.2d 41, 42 (N.Y.
1999) (holding that the EMT’s employer cannot invoke Section
9.59 with respect to a negligent hiring claim as opposed to a
claim premised on vicarious liability).

As the EMTs are immune

from the malpractice claim, JHMC too cannot be held vicarious
liable since that liability is derivative of its agent.
Consequently, Part One of Dr. Ruder’s report is irrelevant to a
triable issue.
189

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Part Two of Dr. Ruder’s report relates to “services
provided in the Emergency Department (ED)” of JHMC.
3.

PMX 36 at

The basis for his criticisms of JHMC’s standard of care is

the Consensus Statement on Medical Clearance Protocols for Acute
Psychiatric Patients Referred for Inpatient Admissions.
Radomisli Decl. Ex. CC, p. 2; Ex. EE; Ex. DD, p. 49.

See

At his

deposition, however, Dr. Ruder acknowledged that the guidelines
he cited in support of his opinion only came into effect after
Plaintiff was hospitalized, and that he was not familiar with
the standard of care in New York as of 2009.
Ex. DD, p. 72.

Radomisli Decl.

Indeed, he testified that the only guidelines or

literature he reviewed regarding the standard of care for the
running of emergency departments were the post-2009 guidelines
he cited in his report (Radomisli Decl. Ex. DD, pp. 131-132),
and that he did not review anything that was in effect in 2009
(Radomisli Decl. Ex. DD, pp. 132-133).

Accordingly, Dr. Ruder’s

opinion lacks the appropriate foundation and is inadmissible.

ii.

JHMC Liable for Physicians’ Alleged Malpractice
The parties apparently dispute the nature of

Plaintiff’s malpractice claim against JHMC.

JHMC contends that

Schoolcraft failed to plead a “vicarious liability” malpractice
claim against JHMC for the Attending Physicians’ actions.
190

See,

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e.g., JHMC’s Reply Mem. 31.

JHMC notes that Plaintiff has been

permitted to amend his complaint three times, and has never
asserted a vicarious liability claim.

The TAC alleges, in

relevant part:
JHMC, its agents, officials, doctors, nurses,
physician’s assistants, servants, employees, and/or
independent contractors, including, but not limited
to, DR. ISAK ISAKOV, and DR. LILIAN ALDANA-BERNIER,
jointly and severally, and individually, departed from
good and accepted standards of medical care, and were
negligent and careless in the service rendered for and
on behalf of plaintiff ADRIAN SCHOOLCRAFT

TAC ¶ 336 (emphasis added).

JHMC has not cited, and this court

has not independently found, case law requiring that the term
“vicarious” be used in order to put forward a medical
malpractice claim under New York law.

The background principle

of notice pleading, which requires a short and plain statement
showing the pleader is entitled to relief, also militates
against JHMC’s contention.

Vicarious liability is not a type of

claim, it is a theory of liability associated with state law
claims, including medical malpractice claims.

While not using

the term “vicariously liable,” the formulation employed by
Plaintiff is sufficient to put JHMC on notice that it is being
held liable, “jointly and severally,” for the alleged
malpractice of Drs. Bernier and Isakov.

And in any event, “[i]f

the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded the
191

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opportunity to test his claim on the merits.”

Schoolcraft v.

City of New York, No. 10 CIV. 6005 RWS, 2015 WL 252413, at *1
(S.D.N.Y. Jan. 16, 2015).

Consequently, this holding obviates

the need for another amendment of the complaint.

JHMC further contends that Schoolcraft “cannot sustain
an independent cause of action for medical malpractice against a
defendant hospital” if he “fails to state how specific members
of the hospital staff committed an act of malpractice
independent from the patient’s attending physicians.”

JHMC’s

Mem. in Supp’t 21 (citing Suits v. Wyckoff Heights Med. Ctr., 84
A.D.3d 487, 488, 922 N.Y.S.2d 388 (N.Y. App. Div. 2011)).
is inapposite under these facts.11

Suits

The court in Suits held that

a “hospital may not be held concurrently liable for injuries
suffered by a patient who is under the care of a private
attending physician chosen by the patient.
added).

Id. (emphasis

Though it is true that hospitals are not normally

liable for the alleged malpractice of their attending
physicians, an exception exists where “a patient comes to the
emergency room seeking treatment from the hospital and not from
a particular physician of the patient’s choosing.”
11

Muslim v.

Likewise, the two other trial court slip opinions JHMC cites in its reply
memorandum of law did not involve involuntary admissions. See Mercedes v.
Farrelly, 2012 N.Y. Misc. LEXIS 2032 (N.Y. Sup. Ct. Apr. 27, 2012) (plaintiff
selected her allegedly negligent surgeon); Dendariarena v. Mount Sinai
Hospital, 2012 N.Y. Misc. LEXIS 2319 (N.Y. Sup. Ct. May 9, 2012) (same)(cited
in JHMC Reply Mem. 32).

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Horizon Med. Grp., P.C., 988 N.Y.S.2d 628, 630 (N.Y. App. Div.
2014); Orgovan v. Bloom, 7 A.D.3d 770, 771, 776 N.Y.S.2d 879
(N.Y. App. Div. 2004) (collecting cases).

Schoolcraft was

involuntarily admitted JHMC’s emergency room, involuntarily
transferred to JHMC’s psychiatric emergency department, and
involuntarily committed by Dr. Bernier.
175-85, 237.

See generally Facts ¶¶

There can be no question, under these facts, that

Schoolcraft did not choose his physicians.

See, e.g., Facts ¶

147 (Schoolcraft specifically requested to be taken Forest Hills
Hospital, not JHMC).

Consequently, the exception described in

Muslim applies and questions of fact, as found above, warrant
denial of the summary judgment sought by JHMC.

C. Negligent Hiring, Retention, Training and Supervision
Claim against JHMC is Dismissed

To state a cause of action for negligent hiring,
training or supervision (hereinafter “negligent hiring”) under
New York law, “in addition to the standard elements of
negligence, a plaintiff must show 1) that the tortfeasor and the
defendant were in an employee-employer relationship; 2) that the
employer knew or should have known of the employee’s propensity
for the conduct which caused the injury prior to the injury’s
occurrence; and 3) that the tort was committed on the employer’s
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premises.”

Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d

Cir. 2004) (citations and quotations omitted); Kenneth R. v.
Roman Catholic Diocese, 229 A.D.2d 159 (N.Y. App. Div. 1997).
“A negligent hiring claim, however, may be possible under an
exception to the principle barring liability with respect to
independent contractors where the defendant party itself was
negligent in selecting, instructing, or supervising the
contractor.”

Corazzini v. Litton Loan Servicing LLP, No. 1:09-

CV-0199 (LEK RFT), 2010 WL 1132683, at *9 (N.D.N.Y. Mar. 23,
2010) (internal quotations and citations omitted).

In his opposition to JHMC’s summary motion on this
point, Plaintiff points the Court to the negligence per se
argument from his moving papers.

See Pl.’s Mem. in Opp’n 122-

123 (referencing Pl.’s Mem. in Supp’t 48-49).

The gist of

Plaintiff’s argument there is that JHMC and the Attending
Physicians involuntarily committed patients on the basis of any
risk, as opposed to the statutorily-compliant level of
“substantial risk.”

See Pl.’s Mem. in Supp’t 48.

insufficient to allege a negligent hiring claim.

This is
Plaintiff does

not allege that JHMC “failed to investigate a prospective
employee, notwithstanding knowledge of facts that would lead a
reasonably prudent person to investigate that prospective
employee.”

Bouchard v. N.Y. Archdiocese, 719 F.Supp.2d 255, 261
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(S.D.N.Y. 2010) (citations and quotations omitted).

Plaintiff

also does not allege that JHMC negligently instructed,
supervised, or trained the Attending Physicians regarding
involuntary commitment decisions.
1132683, at *9.

See Corazzini, 2010 WL

The fact that both JHMC and the Attending

Physicians purportedly applied an incorrect commitment standard
does not constitute evidence that JHMC knew or should have known
that its independent contractors were applying the wrong
standard.

D. Negligence Per Se Claim against JHMC is Dismissed

As suggested above, Plaintiff’s negligence per se
claim cannot survive summary judgment.

His contention is that

JHMC and the Attending Physicians violated the Mental Hygiene
law, by committing Schoolcraft in the absence of a substantial
risk.

See Pl.’s Mem. in Supp’t 48.

the Attending Physicians, not JHMC.

Schoolcraft was admitted by
Consequently, his claim

against JHMC fails, since JHMC’s purported breach of the law is
not the proximate cause of Schoolcraft’s injury.

See Anchundia

v. Ne. Utilities Serv. Co., No. CV 07-4446 (AKT), 2010 WL
2400154, at *5 (E.D.N.Y. June 11, 2010) (“[T]he plaintiff must
prove that the violation of the statute, that is, the breach of

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duty imposed by the statute, was a proximate cause of the
injury.”) (internal quotations and citations omitted).

E. Intentional Infliction of Emotional Distress Claim
against JHMC is Dismissed

As discussed in Section V.B of this Opinion, IIED
claims may be dismissed where they “fall within the ambit of
traditional tort liability” and are in fact duplicates of other
claims put forward.

See Fischer v. Maloney, 373 N.E.2d 1215,

1217 (N.Y. 1978); Druschke v. Banana Republic, 359 F.Supp.2d
308, 315-16 (S.D.N.Y.2005); Herlihy v. Metro. Museum of Art, 633
N.Y.S.2d 106, 114 (N.Y. App. Div. 1995); see also McGrath v.
Nassau Health Care Corp., 217 F.Supp.2d 319, 335 (E.D.N.Y.2002)
(“New York courts do not allow IIED claims where ‘the conduct
complained of falls well within the ambit of other traditional
tort liability.”) (internal citations omitted); Crews v. Cnty.
of Nassau, 996 F. Supp. 2d 186, 214 (E.D.N.Y. 2014) (same);
Franco v. Diaz, No. 14-CV-1909 ILG RER, 2014 WL 4494470, at *4
(E.D.N.Y. Sept. 12, 2014) (“Because precisely the same conduct
and the same injury fall within the ambit of defendants’
proposed defamation counterclaim, their IIED counterclaim in the
Amended Answer must be dismissed as duplicative.”); Druschke v.
Banana Republic, Inc., 359 F. Supp. 2d 308, 316 (S.D.N.Y. 2005)
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(dismissing IIED claim where “there are no allegations of
injuries that may not be redressed through [plaintiff’s] other
causes of action.”).

Unlike Plaintiff’s IIED claim against the City
Defendants, which involved injuries distinct from his other
claims, his IIED claim against JHMC is premised on the same
conduct and injuries giving rise to Schoolcraft’s malpractice
claim.

Consequently, the IIED claim is dismissed.

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VII.

CLAIMS RELATING TO THE ATTENDING PHYSICIANS

Dr. Bernier and Dr. Isakov filed separate summary
judgment motions and oppositions to Schoolcraft’s summary
judgment motion.

Where their arguments substantially overlap,

they are treated jointly below.

A. Section 1983 Claims against the Attending Physicians
are Dismissed

As discussed above, neither JHMC nor the Attending
Physicians treating Schoolcraft were state actors.
Consequently, these claims are dismissed.

See generally Section

VI.A of this Opinion.

B. Intentional Infliction of Emotional Distress Claims
against the Attending Physicians are Dismissed

The IIED claim against the Attending Physicians is
premised on the same conduct giving rise to Schoolcraft’s
malpractice claim against them.
this Opinion.

See generally Section VI.E of

Consequently, the IIED claims are dismissed.

C. Declaratory Relief Claims Survive Summary Judgment
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The Attending Physicians contend that Plaintiff did
not receive permission to add declaratory judgement claims
against them in the TAC.
Mem. in Supp’t 20.

See Bernier’s Reply Mem. 10; Isakov’s

In making his motion to amend, Plaintiff

included an exhibit reflecting the proposed changes to the
operative complaint.

See Exhibit 3 to Pl.’s Mem. of Law in

Supp’t of Motion to Amend, filed December 4, 2014.

Neither of

the Attending Physicians objected to the proposed changes.
Though the Court’s opinion on the motion to amend focused on the
dispute as to the proposed declaratory and injunctive relief
claim as brief by the City Defendants and Schoolcraft, that
description should not be read as an implicit limitation of the
proposed amendment.

Schoolcraft v. City of New York, No. 10

CIV. 6005 RWS, 2015 WL 252413, at *5 (S.D.N.Y. Jan. 16, 2015).
The then-proposed, now operative, TAC contains a request for
“[d]eclaratory judgment in favor of plaintiff and against each
of the defendants,” which extends to the Attending Physicians.
See TAC ¶ 373(c).

D. State Law Claims Survive Summary Judgment

The Attending Physicians contend that the state law
claims against them should be dismissed since the federal claims
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fail.

Bernier’s Mem. in Supp’t 22; Isakov’s Mem. in Supp’t 18.

The Court rejected a substantially similar request by JHMC in
connection with its 2011 motion to dismiss.

See generally

Schoolcraft v. City of New York, No. 10 CIV. 6005 RWS, 2011 WL
1758635, at **4-5 (S.D.N.Y. May 6, 2011) (electing to exercise
supplemental jurisdiction because there exists a common nucleus
of overlapping facts).

The same reasoning applies with equal

force here, and the state claims are not dismissed.

E. False Arrest and Imprisonment Claims Survive
Summary Judgment

As noted in Section V.A of this Opinion, to establish
a cause of action for false imprisonment or false arrest under
New York law, a plaintiff must establish that: (1) the defendant
intended to confine him; (2) the plaintiff was conscious of the
confinement; (3) the plaintiff did not consent to the
confinement; and (4) the confinement was not otherwise
privileged.

Smith v. County of Nassau, 34 N.Y.2d 18, 22 (N.Y.

1974); Hernandez v. City of New York, 953 N.Y.S.2d 199 (N.Y.
App. Div. 2012).

A physician’s decision to involuntary commit a patient
pursuant under the Mental Hygiene Law is privileged in the
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absence of medical malpractice.

Anthony v. City of New York,

No. 00 CIV. 4688 (DLC), 2001 WL 741743, at *14 (S.D.N.Y. July 2,
2001) aff’d, 339 F.3d 129 (2d Cir. 2003); Ferretti v. Town of
Greenburgh, 191 AD2d 608, 610, 595 NYS2d 494 (2d Dept. 1993).
As discussed above in detail in Section VI.B.ii of this Opinion,
questions of material fact remain as to whether JHMC’s
physicians engaged in malpractice by committing Schoolcraft.
Consequently, summary judgment on this issue is inappropriate as
to the Attending Physicians, as well as to JHMC, derivatively.

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