Cunningham v. The City of New York et al

Filing 69

OPINION & ORDER re: 49 MOTION to Dismiss the Second Amended Complaint. filed by The City of New York, Rose Agro. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. More specifically , Defendants' motion is GRANTED as to Defendant City of New York, as Plaintiff is not asserting a § 1983 claim of municipal liability. In addition, Defendants' motion to dismiss Plaintiff's excessive force claim is DENIED. Defen dants' motion to dismiss Plaintiff's state law claims of assault and battery, intentional and negligent infliction of emotional distress, and negligence is GRANTED. Lastly, because Plaintiff is GRANTED leave to amend his complaint for the limited purpose of specifying the timing of his grievances, Defendants' motion to dismiss the Second Amended Complaint as to Defendant Argo is DENIED as moot. (Signed by Judge Andrew L. Carter, Jr on 9/30/2019) (rj)