Tardif v. City of New York et al

Filing 202

OPINION AND ORDER re: 192 MOTION for Reconsideration re; 187 Memorandum & Opinion, MOTION for Reargument, filed by Thomas McManus, Marsha Rumble, Felix Schmidt, 190 FIRST MOTION for Reconsideration re; 187 Memorandum & Opi nion, Adopting in Part Magistrate Judge's Report and Recommendation, filed by Mary M. Tardif. Plaintiff's motion for reconsideration is GRANTED in part and DENIED in part. Defendants' motion is also GRANTED in part and DENIED in part. The parties are directed to appear for a pretrial conference on November 1, 2017 at 11:00 a.m. This Opinion and Order resolves docket entries 190 and 192. (Pretrial Conference set for 11/1/2017 at 11:00 AM before Judge Kimba M. Wood.) (Signed by Judge Kimba M. Wood on 8/23/2017) (ras)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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MARY M. TARDIF,

USDS SDNY

DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~~~~....---1

DATE FILED:_

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OPINION AND ORDER
Plaintiff

-against13 CV 4056 (KMW)
CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT, INSPECTOR JOHN
O'CONNELL, DEPUTY INSPECTOR EDWARD
WINSKI,
POLICE
OFFICER
JAMES
MCNAMARA, POLICE OFFICER ALENA
AMINOV A, POLICE OFFICER KENDAL
CREER, POLICE OFFICER MARSHA RUMBLE,
POLICE OFFICER FELIX SCHMIDT, DEPUTY
INSPECTOR DANIEL MULLIGAN, SERGEANT
THOMAS MCMANUS, AND JOHN DOE NYPD
OFFICERS ## 1-9,
Defendants.

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KIMBA M. WOOD, DISTRICT JUDGE:

The parties have filed cross-motions for reconsideration of this Court's March 22, 2017
Opinion and Order (0 & 0, [Doc. No. 187]), which adopted in part Magistrate Judge Fox's Report
and Recommendation (R & R, [Doc. No. 178]) on Defendants' motion for summary judgment
(Doc. No. 164). For the reasons set forth below, Plaintiffs motion is GRANTED in part and
DENIED in part. Defendants' motion is also GRANTED in part and DENIED in part.

I.

BACKGROUND
On June 13, 2013, Plaintiff Mary Tardif commenced this action for damages against the

City of New York ("the City"), and various NYPD officers. (Compl. [Doc. No. 1]). Her claims
arose out of the NYPD's response to her involvement in Occupy Wall Street protests in March and
April of 2012.

Plaintiffs complaint contained allegations of false arrest, excessive force,

deliberate indifference to a serious medical condition, unconstitutional conditions of confinement,
violations of the Americans with Disabilities Act, assault and battery, First Amendment retaliation,
malicious prosecution, and tortious conduct by the City under the doctrine of respondeat superior.
Id.

Plaintiff has since filed two amended complaints, the second of which was docketed on
January 15, 2016 ("TAC") [Doc. No. 135]). The parties initially participated in mediation, as part
of this District's process for resolving § 1983 litigation. The parties were unable to reach a
settlement. Defendants filed a motion for summary judgment on June 1, 2016 (Doc. No. 164). The
motion was fully submitted on July 15, 2016 (Doc. No. 177). Magistrate Judge Fox issued his
Report and Recommendation on February 6, 2017. (Doc. No. 178). The parties filed objections to
Magistrate Judge Fox's Report and Recommendation on February 21, 2017. (Doc. Nos. 179- 181).
The parties each responded to these objections on March 7, 2017. (Doc. Nos. 182, 183). This Court
issued its Opinion and Order adopting in part Magistrate Judge Fox's Report and Recommendation
on March 22, 2017. (Doc. No. 187). The parties each filed their motions for reconsideration on
April 21, 2017. (Doc. Nos. 190- 193).

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II. ST AND ARD GOVERNING A MOTION FOR RECONSIDERATION
"[R]econsideration of a previous order is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources." In re Health

Mgmt. Sys., Inc. Sec. Litig., 113 F.Supp.2d 613, 614 (S.D.N.Y. 2000) (Berman, J.) (internal
quotation marks omitted). To prevail on a motion for reconsideration and reargument, "the moving
party must demonstrate controlling law or factual matters put before the court on the underlying
motion that the movant believes the court overlooked and that might reasonably be expected to
alter the court's decision." Montanile v. Nat'! Broad Co., 216 F.Supp.2d 341, 342 (S.D.N.Y. 2002)
(Marrero, J.). ''A motion for reconsideration may not be used to advance new facts, issues or
arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating
issues already decided by the Court." Davidson v. Scully, 172 F.Supp.2d458, 461(S.D.N.Y.2001)
(Leisure, J.). The standard is "strict in order to dissuade repetitive arguments on issues that have
already been considered fully by the court." Travelers Ins. Co. v. Buffalo Reinsurance Co., 739
F.Supp. 209, 211 (S.D.N.Y.1990) (Cannella, J.) (quoting Caleb & Co. v. E.I. DuPont de Nemours
& Co., 624 F.Supp. 747, 748 (S.D.N.Y. 1985) (Sweet, J.)).

III. DISCUSSION
A. Plaintiff's Motion for Reconsideration

Plaintiff asks this Court to reconsider every claim on which it granted summary judgment
in favor of Defendants. The Court will address each of her claims in turn, in the order in which
they were presented in her motion.
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Respondeat Superior Claim
Plaintiff laid out her respondeat superior allegations in the Ninth Cause of Action of her
Third Amended Complaint. She stated that "the defendant officers were engaged in governmental
activity as on duty New York City police officers when they falsely arrested Plaintiff without
probable cause, used excessive force in the course of arresting Plaintiff, were deliberately
indifferent to Plaintiffs serious medical condition, and subjected Plaintiff to unconstitutional
conditions of confinement." She further alleged that "[t]he defendant officers' willful and tortious
acts were undertaken within the scope of their employment by defendant City of New York and in
furtherance of the defendant City of New York's interest." (TAC,

iii! 230-31). Earlier in her

complaint, Plaintiff specified that her claims of false arrest, excessive force, deliberate indifference
to a medical condition, and unconstitutional conditions of confinement all arose under § 1983.
(TAC, ';;ii 147, 156, 172, 185).
In recommending summary judgment in favor of Defendants in his Report and
Recommendation, Magistrate Judge Fox relied on well-settled principles articulated in Monell v.
Dept. ofSocial Services of the City of New York, 436 U.S. 658 (1978). He explained that the City

cannot be held liable on a respondeat superior theory when the underlying claims alleged arise
under§ 1983, unless the Plaintiff can prove the alleged constitutional violations occurred pursuant
to a municipal policy or custom. (R & R, 17-18). Magistrate Judge Fox further concluded that
Plaintiff could not prove that "any violation of her constitutional rights was caused by an action
pursuant to a policy or custom of the City." Id. at 18. In recommending that all claims against the
City of New York be dismissed on Monell grounds, Magistrate Judge Fox did not distinguish
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between Plaintiffs predicate claims that arose under state law (her assault and battery claim) and
those that arose under federal law (her § 1983 claims). However, in adopting Magistrate Judge
Fox's recommendation, this Court noted that Plaintiffs complaint clearly limited her respondeat
superior allegations to her four § 1983 claims, rendering summary judgment on Monell grounds

appropriate even though Plaintiffs complaint contained one cause of action that arose under New
York State law. (0 & 0, 10-11 ).
Plaintiff now argues that the Court did not construe her respondeat superior claims
liberally enough in adopting Magistrate Judge Fox's recommendation that the claims be dismissed,
and that the Court was required to construe her insufficient pleadings in her favor if her claim
might otherwise have been grounded in the factual record. First, she argues that she meant to assert
respondeat superior liability with respect to her New York State law assault and battery allegations

(a claim that the Court could not have dismissed on Monell grounds), despite the fact that her Third
Amended Complaint indicated otherwise. Second, she contends that the factual record made clear
that she asserted respondeat superior liability with respect to her assault and battery claim.
Plaintiff fails to note that she was granted leave to file an amended complaint two separate times.
Plaintiff thus had three opportunities over the course of more than one year to adequately plead
her respondeat superior claims, and each time failed to do so.
However, despite Plaintiffs deficient pleadings, she is correct that under Rule 56(f)(2) of
the Federal Rules of Civil Procedure, it is permissible for a district court to grant summary
judgment on "grounds not raised by a party" only "(a]fter giving notice and a reasonable time to
respond." See also Willey v. Kirkpatrick, 801 F.3d 51, 62-63 (2d Cir. 2015). Defendants did not
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argue that Plaintiffs respondeat superior claims must be dismissed on Monell grounds in any of
their summary judgment briefing. The first time Defendants contended that Monell required
dismissal Plaintiffs respondeat superior claims was in their March 7, 2017 Memorandum in
Opposition to Plaintiffs Objections to Magistrate Judge Fox's Report and Recommendation (Doc.
No. 183). In fact, Defendants made no mention at all of Plaintiffs respondeat superior claims in
their June 1, 2016 Memorandum of Law in Support of their Motion for Summary Judgment.
Defendants did once reference Plaintiffs respondeat superior claims in their July 15, 2016 Reply
to Plaintiffs Opposition to their Motion for Summary Judgment, but they did not offer any ground
for dismissal of those claims. (Def. Reply, 1 [Doc. No. 177]).
Because Plaintiff concedes that, despite her pleadings, she cannot and never intended to
maintain a claim of respondeat superior liability with respect to her federal § 1983 claims, the
Court declines to revisit its decision to grant summary judgment in this respect. (Pl's Mem. in
Supp, 4 [Doc. No. 191 ]). However, because Defendants failed to address Plaintiffs respondeat
superior claims in their summary judgment briefing, and because the record does reflect Plaintiffs
intention to seek respondeat superior liability with respect to her New York State law claim, 1 the
Court preserves for trial Plaintiffs respondeat superior claim only with respect to her underlying
state law assault and battery allegation. 2 Her motion for reconsideration of this Court's decision to

1 See Plaintiffs July 1, 2016 Memorandum in Opposition to Defendant's Motion for Summary
Judgment (Doc. No. 174).
z The Court preserves for trial Plaintiff respondeat superior claim because it also denies
Defendants' motion for reconsideration of this Court's previous decision to deny summary
judgment on plaintiffs underlying assault and battery claim, as indicated on page 12 of this
Opinion and Order.
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adopt Magistrate Judge Fox's recommendation that all of Plaintiffs respondeat superior claims
be dismissed is thus granted in part, and denied in part. 3

Americans with Disabilities Act Claim

The Court granted summary judgment for Defendants on Plaintiffs Americans with
Disabilities Act ("ADA") claim on the ground that Plaintiff failed to allege that any denial of
treatment occurred because of her disability, as is required in order to assert a valid ADA claim.
Plaintiff alleges that the Court overlooked dispositive law, Henrietta D. v. Bloomberg, 331 F.3d
261 (2d Cir. 2003) ("Henrietta D "). Specifically, Plaintiff alleges that pursuant to Henrietta D.,
Plaintiff need not allege that any denial of medical treatment was the result of discrimination based
on a disability when bringing an ADA claim under a "reasonable accommodation" theory. Plaintiff
misconstrues Henrietta D., and ignores controlling law that mandates that reasonable
accommodation claims must still be premised on a denial of treatment due to one's disability.
Henrietta D did note, as Plaintiff suggests, that a Plaintiff alleging a failure to provide reasonable

accommodation need not prove that a "comparison class" of "similarly situated individuals are
being given preferential treatment." Id. at 273. However, Henrietta D. also clearly held that in
order to establish a reasonable accommodation claim under the ADA, a plaintiff must demonstrate
that (1) she is a "qualified individual" with a disability; (2) that the defendants are subject to the

Plaintiff appears to also ask the Court to preserve for trial her respondeat superior claim with
respect to her deliberate indifference to a medical condition allegations. The Court declines to do
so, as Plaintiffs Third Amended Complaint and all subsequent briefing clearly indicates that this
claim arises under § 1983. See (TAC ~ 172).
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ADA; and (3) that plaintiff was denied the opportunity to participate in or benefit from defendants'
services, programs, or activities, or was otherwise discriminated against by defendants, by reason
of plaintiffs disabilities. Id. at272 (citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998)). The
fact that Plaintiff advances a reasonable accommodation claim thus does not eliminate the
requirement that she show that any denial of treatment was due to her disability. In fact, the Second
Circuit has made clear that in order to allege a violation of the ADA on a reasonable
accommodation theory, "there must be something different about the way the plaintiff is treated
by reason of ... disability." Id. at 276.
The undisputed portion of the factual record does not support a finding that any failure on
the part of the NYPD to provide Plaintiff with her epilepsy medication was motivated by reason
of her disability. In her motion for reconsideration, Plaintiff simply urges the Court to view the
undisputed factual record differently than it did in its previous Opinion and Order. The Court
declines to do so, and it declines to reconsider its decision to grant Defendants' motion for
summary judgment on Plaintiffs ADA claim.

False Arrest, Malicious Prosecution, and First Amendment Retaliation Claims

The Court adopted Magistrate Judge Fox's recommendation that Plaintiffs false arrest,
First Amendment retaliation, and malicious prosecution claims be dismissed because probable
cause existed for her April 16, 2012 arrest, and probable cause to arrest remains an absolute defense
to false arrest, malicious prosecution, and First Amendment retaliation claims. (0 & 0 at 1-3, 910 (citing Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003); Posr v. Court Officer Shield
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#207, 180 F.3d 409 (2d Cir. 1999); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996); Kuck v. Danaher,

600 F.3d 159, 168 (2d Cir. 2010). See also Fabrikant v. French, 691F.3d193, 215-216 (2d Cir.
2012) ("[Defendant's] claims of malicious prosecution, unreasonable search and seizure, and first
Amendment retaliation fail because defendants had probable cause ... ").
Plaintiff now argues that the Court unfairly construed the factual record in Defendants'
favor. The Court disagrees, and notes once again that disagreement with the legal conclusion the
Court draws from the undisputed factual record is not a ground for reconsideration. In making his
initial determination that probable cause existed, Magistrate Judge Fox thoroughly and fairly
reviewed both the facts on which the parties agreed and those that were in dispute. Because the
Court maintains its agreement with Magistrate Judge Fox that probable cause existed for Plaintiffs
April 16, 2012 arrest, the Court denies Plaintiffs motion for reconsideration with regard to her
false arrest, First Amendment retaliation, and malicious prosecution claims.

B. Defendant's Motion for Reconsideration

Defendants move for reconsideration on every claim for which this Court denied summary
judgment. The Court addresses each in tum.

Excessive Force Claim against Sergeant McManus

In her Third Amended Complaint, Plaintiff asserted that Officer McManus' s March 21,
2012 use of force violated both her Fourth and Fourteenth Amendment rights. Defendants now
argue that the Court erred in preserving this claim for trial for two reasons. First, they argue that
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Plaintiff cannot assert that her Fourth Amendment right was violated because she was not subject
to a Fourth Amendment seizure on that day. Second, they argue that Officer McManus's contact
with Plaintiff does not satisfy the heightened evidentiary standard necessary to succeed on a
Fourteenth Amendment excessive force claim.
As an initial matter, defendants are correct to note that although Plaintiff had an altercation
with NYPD officers while attending a March 21, 2012 Occupy Wall Street protest, she was not
ultimately arrested on that day. They are also correct in asserting that Plaintiffs Fourth
Amendment claim must be dismissed. In order for Plaintiff to adequately allege that her Fourth
Amendment right was violated during her altercation with Sergeant McManus, Plaintiff must have
been seized by the officer. A seizure requires "a governmental termination of freedom of
movement through means intentionally applied." Cnty. ofSacramento v. Lewis, 523 U.S. 833, 844
(1998) (quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989)) (emphasis removed).
Plaintiff was not arrested or stopped in the course of a police investigation. She was free to leave
the demonstration both before and after she encountered Officer McManus. She thus was not
subject to a Fourth Amendment seizure on March 21, 2012, and her Fourth Amendment right was
not violated.
In determining whether Plaintiff has shown a genuine dispute of material fact with respect
to whether her Fourteenth Amendment right was violated, the Court must assess whether the
officer's use of force "shocks the conscience, offends a sense of justice or runs counter to the
decencies of civilized conduct." Rochin v. California, 342 U.S. 165, 175 (1952). The Second
Circuit has laid out a four-part test for determining whether use of force meets this standard. The
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Court must consider: "[ 1] the need for the application of force, [2] the relationship between the
need and the amount of force that was used, [3] the extent of injury inflicted, and [4] whether force
was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm." Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir. 1998)
(citing Johnson v. Glick, 481F.2d1028, 1033 (2d Cir. 1973)).
In this case, Sergeant McManus used an open hand to push the Plaintiff to the ground as
she stood on her crutches. (Def. Mem. in Opp'n, 10 [Doc. No. 195]). Defendants continue to argue
that this conduct did not violate Plaintiffs Fourteenth Amendment right because she has not shown
that she was seriously injured, and because any force used was de minimus. Id While ajury might
well reach that conclusion, it would be inappropriate for the Court do so at this stage; the parties
continue to dispute the need for and nature of Sergeant McManus's use of force on the Plaintiff,
as well as the circumstances leading up to the altercation between Plaintiff and Sergeant McManus.
(Pl's Resp. to 56.l Statement, 36-38, 79 [Doc. No. 160]). See also Caravalho v. City of New York,
2016 WL 1274575 (S.D.N.Y. Mar. 31, 2016) (Castel, J.) (denying summary judgment on a similar
claim of excessive force arising out of an Occupy Wall Street protest); Bogart v. City ofNew York,
2016 WL 4939075 (S.D.N.Y. Sept. 6, 2016) (Buchwald, J.) (holding that an officer's punching an
Occupy Wall Street protester in the face while not actually effectuating her arrest precluded
summary judgment); Acosta v. City of New York. 2012 WL 1506954, (S.D.N.Y. Apr. 26, 2012)
(Forrest, J.) (holding that the fact that a plaintiff suffered de minimus injuries does not
automatically warrant dismissal of an excessive force claim); Harrell v. Cnty. ofNassau, 2013 WL

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5439137, at *11 (E.D.N.Y. Sept. 27, 2013) (Brodie, J.) (denying defendants' motion for summary
judgment when an officer "punched Plaintiff in his face without provocation.").
The Court's function here is not "to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 242-43 (1986). Given the fact-specific nature of excessive force inquiries, ''granting
summary judgment against a plaintiff on an excessive force claim is not appropriate unless no
reasonable fact finder could conclude that the officer's conduct was objectively unreasonable."

Amnesty Am. v. Town ofW Hartford, 361 F.3d 113, 123 (2d Cir. 2004). The Court maintains that
a genuine dispute of material fact exists with respect to whether Sergeant McManus's conduct,
given the circumstances, abrogates his entitlement to qualified immunity. Defendants have
presented no overlooked facts or controlling law that warrant a finding to the contrary. The Court
thus declines to revisit its decision to deny summary judgment on Plaintiffs excessive force claim.

Assault and Battery
The elements of assault and battery in New York are "substantially identical" to those of a
§ 1983 claim for excessive force. Caravalho, 2016 WL 1274575, at *22 (quoting Posr v. Doherty,
944 F.2d 91, 95 (2d Cir. 1991)). Because Plaintiffs excessive force claim cannot be resolved at
this stage, the Court also declines to revisit its previous denial of summary judgment on Plaintiffs
assault and battery claim.

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Deliberate Indifference to Plaintiff's Medical Condition Claim
Defendants next argue that the Court misconstrued the factual record in preserving for trial
Plaintiffs claim for deliberate indifference to a serious medical condition. Plaintiff asserted that
two altercations with the police-one on March 17-18, 2012, and another on April 16, 2012amounted to deliberate indifference to her serious (epileptic) medical condition in violation of her
Fourteenth Amendment due process rights.
In preserving Plaintiffs deliberate indifference claim for trial, the Court did not specify
which of these claims survived summary judgment. The Court now clarifies its decision: Plaintiff
can maintain her deliberate indifference claim only with respect to her April 16, 2012 term of
custody. Defendants are correct that Plaintiff cannot assert a claim of deliberate indifference
against the John Doe officers whom Plaintiff alleges denied her access to her seizure medication
during her March 17-18, 2012 term of confinement, because Plaintiff failed to identify those
officers by the close of discovery. See (0 & 0, 6). However, material facts remain in dispute with
respect to whether Officers Rumble and Schmidt's decision to not immediately attend to Plaintiffs
seizure while effectuating her April 16, 2012 arrest amounted to knowing disregard of Plaintiffs
health or safety. For example, the parties continue to dispute how and when the officers responded
to Plaintiffs seizure, as well as whether Plaintiffs epilepsy was sufficiently serious as to warrant
certain medical care. See (Pl's Resp. to 56.1 Statement, 61-64 [Doc. No. 160]); (Def. Mem. in
Supp, 11 [Doc. No. 165]).
The parties also dispute whether the NYPD Patrol Guide actually required the officers to
transport Plaintiff to the nearest hospital directly from her place of arrest, or whether it allowed
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them to place her in a holding cell briefly, before transporting her to the hospital. (Cf Pl's Mem.
in Opp'n, 12-13 [Doc. No. 174] with Def Reply, 7-8 [Doc. No. 197]). Whether the officers violated
the NYPD Patrol Guide remains a significant factor to be considered in ultimately determining
whether the officers' actions that day were reasonable and subject to qualified immunity. See Smith
v. City of New York, 2015 WL 4643125, at *3 (S.D.N.Y. Aug. 5, 2015) (Buchwald, J.). ("The
[NYPD] Patrol Guide has frequently been accepted as evidence of the standard of care to be
exercised by a police officer.").
It is the jury's role to assess these factual disputes in determining whether the officers

violated Plaintiffs Fourteenth Amendment right when she experienced a seizure while in police
custody. Defendant's motion for reconsideration on this claim is thus granted in part; the Court
grants summary judgment in favor of Defendants with respect to Plaintiffs deliberate indifference
claim based on her March 17-18, 2012 term of custody, but her claim with respect to her April 16,
2012 arrest survives for trial.

Unconstitutional Conditions of Confinement Claims
Plaintiffs two claims of unconstitutional conditions of confinement stem from the same
facts as her deliberate indifference claims, and they relate to the same two arrests, on March 1718, 2012 and April 16, 2012. For reasons previously stated regarding Plaintiffs inability to identify
the John Doe defendants, her claim arising from her March 17-18 term of custody is dismissed.
Her claim related to her April 16, 2012 term of custody survives for trial, because the same material
factual disputes noted with respect to Plaintiff's deliberate indifference claim also preclude a
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finding of summary judgment on Plaintiffs claim for unconstitutional conditions of confinement.
Defendants' motion for reconsideration of this claim is thus granted in part; while the Court grants
summary judgment in favor of Defendants with respect to Plaintiffs March 17-18, 2012 term of
custody, her unconstitutional conditions of confinement claim relating to her April 16, 2012 arrest
survives for trial.

IV. CONCLUSION
For the reasons set forth above, Plaintiffs motion for reconsideration is GRANTED in part
and DENIED in part. Defendants' motion is also GRANTED in part and DENIED in part. The
parties are directed to appear for a pretrial conference on November 1, 2017 at 11 :00 a.m. This
Opinion and Order resolves docket entries 190 and 192.

SO ORDERED.
Dated: New York, New York
August 23, 2017

KIMBA M. WOOD
UNITED STATES DISTRICT JUDGE

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