Bleiwas v. City Of New York et al
OPINION AND ORDER re: 84 MOTION for Reconsideration re; 80 Memorandum & Opinion (partial reconsideration) filed by Carl Lai, Wojciech Lipinsky, George Gomez, Miriam Lorenzo, Dennis Bowman, Christopher Kennis, Alfredo Torres, Esther Bueno. For the reasons set forth above, Defendants' motion to reconsider is GRANTED in part and DENIED in part as follows: GRANTED insofar as Plaintiff's failure to intervene claim is premised on the alleged false arres t, but DENIED insofar as Plaintiff's failure to intervene claim is premised on his malicious prosecution claim. GRANTED with respect to the supervisory liability claims against Sergeant Gomez, Deputy Inspector Lorenzo, and Lieutenants Bowman and Kennis. The Clerk of Court is respectfully directed to terminate the motion, Doc. 84. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 1/11/2018) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
15 Civ. 10046 (ER)
- against CITY OF NEW YORK, LEON LIAN,
ALFREDO TORRES, GEORGE GOMEZ,
MIRIAM LORENZO, DENNIS BOWMAN,
CHRISTOPHER KENNIS, ESTHER BUENO,
CARL LAI, WOJCIECH LIPINSKY, PIERRE
BARBEE, JOHN HAND, and JOHN and JANE
DOE 1 through 10,
Plaintiff Martin Bleiwas brings this action pursuant to 42 U.S.C. § 1983 against the City
of New York, and individual Defendants Sergeant Leon Lian, Detective Alfredo Torres,
Sergeant George Gomez, Deputy Inspector Miriam Lorenzo, Lieutenant Dennis Bowman,
Lieutenant Christopher Kennis, Detective Esther Bueno, Detective Carl Lai, Detective Wojciech
Lipinsky, Pierre Barbee, and Lieutenant John Hand (together “Defendants”), claiming, among
other things, false arrest, malicious prosecution, denial of the right to a fair trial, and failure to
intervene in violation of his Fourth and Fourteenth Amendment rights. On August 15, 2017, the
Court granted in part and denied in part Defendants’ motion to dismiss (the “Order”). 1 (Doc.
80). Specifically, the Court granted Defendants’ motion to dismiss Plaintiff’s: (1) denial of a
fair trial claim against Sergeant Gomez, Deputy Inspector Lorenzo, Lieutenants Bowman and
The facts and procedural history of this case are discussed in the Order, familiarity with which is presumed.
Kennis, and Detectives Torres, Bueno, Lai, and Lipinski; (2) common law battery claim; (3) state
constitutional tort claim; and (4) Monell liability and negligence claims against the City. The
Court, however, denied Defendants’ motion to dismiss with respect to Plaintiff’s: (1) state and
federal malicious prosecution claim against Sergeant Lian, Lieutenant Hand, and Barbee, and
state malicious prosecution claim against the City; (2) fair trial claim against Sergeant Lian,
Lieutenant Hand, and Barbee; (3) failure to intervene claim against the individual Defendants;
and (4) supervisory liability claim against Sergeants Lian and Gomez, Deputy Inspector Lorenzo,
and Lieutenants Bowman, Kennis, and Hand.
Defendants now move, pursuant to Local Civil Rule 6.3, for partial reconsideration of the
Order, arguing that the Court should dismiss Plaintiff’s failure to intervene claims against
Defendants Sergeant Gomez, Deputy Inspector Lorenzo, Lieutenants Bowman and Kennis, and
Detectives Torres, Bueno, Lai, and Lapinski (collectively, the “Search Warrant Execution
Defendants” 2), as well as the supervisory liability claim with respect to Sergeant Gomez, Deputy
Inspector Lorenzo, and Lieutenants Bowman and Kennis. Memorandum of Law in Support of
Defendants’ Motion for Reconsideration (“Defs.’ Mem.”) (Doc. 85).
For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED
Rule 6.3 of the Local Civil Rules for this District provides for reconsideration of a court’s
order on a motion only where the court has overlooked controlling decisions or factual matters
These individual Defendants are so named because their central involvement in this case was having assisted in the
execution of the search warrant and arrest at issue here.
that were “put before it on the underlying motion . . . and which, had they been considered,
might have reasonably altered the result before the court.” Mikol v. Barnhart, 554 F. Supp. 2d
498, 500 (S.D.N.Y. 2008) (quoting Greenwald v. Orb Commc’ns & Mktg., Inc., No. 00 Civ.
1939 (LTS) (HBP), 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003)); see also Local R. 6.3.
Under such circumstances, a motion for reconsideration may be granted “to correct a clear error
or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks omitted).
“Reconsideration of a court’s previous order is an ‘extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.’” Parrish v.
Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health Mgmt. Sys. Inc. Sec.
Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). Local Rule 6.3 is “narrowly construed and
strictly applied so as to avoid repetitive arguments on issues that have been considered fully by
the Court.” Mikol, 554 F. Supp. 2d at 500 (quoting Dellefave v. Access Temps., Inc., No. 99 Civ.
6098 (RWS), 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001)) (internal quotation marks
omitted). “Where the movant fails to show that any controlling authority or facts have actually
been overlooked, and merely offers substantially the same arguments he offered on the original
motion or attempts to advance new facts, the motion for reconsideration must be denied.” Id.
(citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Whether to grant or deny a motion for reconsideration is within the sound discretion of
the district court. Premium Sports Inc. v. Connell, No. 10 Civ. 3752 (KBP), 2012 WL 2878085,
at *1 (S.D.N.Y. June 11, 2012) (citing Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009)).
A. Failure to Intervene
Defendants assert that the Court should have dismissed the failure to intervene claim
against the Search Warrant Execution Defendants because the Court’s dismissal of certain other
claims necessarily precludes a finding of liability on the failure to intervene claim. Specifically,
Defendants argue that the Court’s dismissal of the underlying false arrest, malicious prosecution,
and denial of fair trial claims as to the Search Warrant Execution Defendants “necessarily
establishes that” these Defendants had “no reason to know” that Plaintiff’s constitutional rights
were being violated, and therefore also had “no opportunity to intervene” to prevent the alleged
violations. Defs.’ Mem. at 4–5. In response, Plaintiff contends that the Court correctly decided
the issue and that Defendants are not entitled to “relitigate an issue already decided.” Plaintiff’s
Memorandum of Law in Opposition to Motion for Reconsideration (“Pl.’s Mem. in Opp.”) (Doc.
88) at 2.
“An officer who fails to intercede is liable for the preventable harm caused by the actions
of the other officers where that officer observes or has reason to know: (1) that excessive force
is being used (2) that a citizen has been unjustifiably arrested or (3) that any constitutional
violation has been committed by a law enforcement official.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994) (citations omitted). However, “‘[i]n order for liability to attach, there must
have been a realistic opportunity to intervene to prevent the harm from occurring.’” Id.
In the Order, the Court explicitly dismissed the Search Warrant Execution Defendants
from each of the underlying substantive claims. With respect to the false arrest claim, the Court
found that the Search Warrant Execution Defendants acted reasonably in arresting Plaintiff
because they were entitled to “rely on the search warrant and Sergeant Lian’s direction.” Order
at 9. With respect to the malicious prosecution and denial of the right to a fair trial claims, the
Court concluded that the Search Warrant Execution Defendants were neither alleged to have
initiated the prosecution, nor plausibly alleged to have created or forwarded false information,
respectively. Order at 11–14. Although the Search Warrant Execution Defendants may have
had “no reason to know” that Plaintiff was being falsely arrested, it does not follow that,
following Plaintiff’s arrest and detention, they necessarily had no reason to know that none of his
constitutional rights were being violated. That is to say, in the nine months following Plaintiff’s
arrest 3 and in view of Plaintiff’s claims of having lawfully purchased the radios at a City auction,
the Search Warrant Execution Defendants could have easily become aware of the truth of those
claims and realized that there was no basis for prosecuting Plaintiff for criminal possession of the
radios. Under that circumstance, even though they may not have initiated the prosecution against
Plaintiff, the Search Warrant Execution Defendants could be held liable for failing to intervene
to prevent Plaintiff’s alleged malicious prosecution because they would have had a “realistic
opportunity . . . to prevent [that] harm from occurring.” See Branen, 17 F.3d at 557; Order at 15.
Plaintiff’s allegation that the Search Warrant Execution Defendants “failed to intervene in
[P]laintiff’s . . . prosecution despite a reasonable opportunity to do so,” Amended Complaint,
(Doc. 23) ¶ 33, is sufficient to survive dismissal. See Matthews v. City of New York, 889 F.
Supp. 2d 418, 444 (E.D.N.Y. 2012) (“Where a plaintiff has properly alleged a constitutional
violation, he is ‘entitled to discovery to determine which officers participated directly in the
alleged constitutional violations and which officers were present and failed to intervene.’”)).
That being said, the Court agrees with Defendants that the Search Warrant Execution Defendants
Plaintiff was arrested on April 9, 2015, and appeared in New York Country Criminal Court on June 1 and June 24,
2015, before the charges were ultimately dropped on September 9, 2015. See Order at 2–3.
could not be held liable for failing to intervene to prevent the alleged false arrest of Plaintiff,
because the Search Warrant Execution Defendants reasonably relied on the search warrant and
were not privy to the information shared between Sergeant Lian, Lieutenant Hand, and Barbee at
the time of the arrest. See Order at 7–8.
Accordingly, Defendants’ motion for reconsideration is DENIED with respect to
Plaintiff’s claim that Defendants failed to intervene to prevent his malicious prosecution, but
GRANTED insofar as Plaintiff’s failure to intervene claim is premised on the alleged false
B. Supervisory Liability
Defendants next urge the Court to dismiss the supervisory liability claim against Gomez,
Lorenzo, Bowman and Kennis because the Court’s order “reflects that these Defendants had no
personal involvement in any alleged constitutional violation.” Defs.’ Mem. at 7. Conversely,
Plaintiff asserts that the Court’s decision should not be disturbed because the Court found that
Plaintiff had plausibly alleged that the supervisory Defendants were participants in his
constitutional violation. Pl.’s Mem. in Opp. at 3.
“It is well settled in this Circuit that ‘personal involvement of defendants 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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991)). That personal involvement can be shown by direct or indirect participation.
Garnett v. City of New York, No. 13 Civ. 7083 (GHW), 2014 WL 3950904, at *7 (S.D.N.Y. Aug.
13, 2014) (citing Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)). In either case,
however, the defendant must have had “knowledge of the facts that rendered the action illegal.”
Provost, 262 F.3d at 155 (footnote omitted); see also id. (stating that liability for indirect
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