Morgan et al v. City of New York et al

Filing 58

ORDER granting in part and denying in part 57 Letter Motion for Extension of Time to Answer re 57 LETTER MOTION for Extension of Time to File Answer addressed to Judge Naomi Reice Buchwald from Jacquelyn Dainow dated 5.8.24. L ETTER MOTION for Discovery addressed to Judge Naomi Reice Buchwald from Jacquelyn Dainow dated 5.8.24., 1 Complaint. ; granting in part and denying in part 57 Letter Motion for Discovery. Application granted in part. The Court grants 30-day extension both for defendants to respond to the Amended Complaint and for fact discovery deadline. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 5/9/24) (yv)

HON. SYLVIA O. HINDS-RADIX
Corporation Counsel

JACQUELYN A. DAINOW
Assistant Corporation Counsel
Phone: [phone]
Fax: [phone]
Email: [e-mail]

THE CITY OF NEW YORK

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

May 8, 2024
VIA E.C.F.
Hon. Naomi Reice Buchwald
United States District Court
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, NY 10007
Re: Morgan et al. v. City of New York, No. 23-cv-1079 (NRB)
Dear Judge Buchwald:
I am an Assistant Corporation Counsel in the Office of the Corporation Counsel, attorney
for Defendant the City of New York (“City”) in the above-referenced matter.
I write on behalf of all Defendants in this action (both agency and individual1), to
respectfully request a 45-day extension of time to respond to Plaintiffs’ Amended Complaint, from
May 13, 2024 to June 27, 2024, and also for an extension of the July 15, 2024 fact discovery
deadline to August 29, 2024. The reason for the requested extensions is that the individually
named Defendants have only just recently been served (one less than a week ago), and this Office
needs sufficient time to review requests for representation once received, conduct representation
interviews, and make representation decisions with respect to these individuals. Specifically, an
extension of time is necessary to afford this Office an adequate opportunity to meet and review the
case with the individual defendants, after they have requested representation by the Law
Department, in order make appropriate representation determinations, pursuant to NY General
Municipal Law (“GML”) 50-k. The officers must then decide whether they wish to be represented
by this Office. If so, this Office must obtain their written authorization. Only after this process
has been followed can this Office determine how to proceed in this case. (See General Municipal
Law § 50(k); see also Mercurio v. The City of New York, et al., 758 F.2d 862, 864-65 (2d Cir.
1985); Williams v. City of New York, et al., 64 N.Y.2d 800, 486 N.Y.S.2d 918 (1985) (noting that
the decision to bestow legal representation upon individual defendants is made by the Corporation
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The Law Department currently represents only the City. It seeks an extension of time to respond
to Plaintiffs’ Amended Complaint on behalf of the individually named New York City Department
of Correction (“DOC”) Defendants, as well, while representation determinations are made.

Counsel as set forth in state law). The requested extension of time will afford this Office the
opportunity to meet with each officer and make appropriate representation determinations in an
efficient manner. Further, in order not to waste this Court’s time and resources, this extension is
respectfully requested so that all responses to the Amended Complaint can be served at the same
time. Lastly, an extension of the discovery deadline is necessary as depositions cannot be
scheduled or commenced before representation decisions are made.
This is Defendants’ second request for an extension of these deadlines. The Court
previously granted, in part, Defendants’ first request to extend these deadlines from April 1, 2024
to May 15, 2024, and May 31, 2024 to July 15, 2024, respectively (see ECF No. 35). Plaintiffs do
not consent to this request. Plaintiffs argue below, inter alia, that it is the City’s fault that the
individual Defendants were not served sooner, alleging that the City failed to provide Plaintiffs
with service addresses and/or correct service addresses. However, such is not the case; officer
postings change all of the time and the City provided the information it believed to be correct when
received from DOC. At no point did, nor would, the City ever knowingly or intentionally withhold
service addresses or provide incorrect service addresses, and any argument by Plaintiffs that this
was the case here is incorrect and should be disregarded. Further, as stated above, it is irrelevant
if the City was on notice of who was named as a Defendant in this case as the City cannot do
anything until those Defendants are properly served, request representation, representation
interviews are conducted, and representation decisions are made. Further, with respect to Plaintiffs
claiming that Defendant Tinsley’s time to respond to their Amended Complaint has passed, again,
the City must go through the procedure outlined above pursuant to GML 50-k in order to make
representation decisions before a response can be served, and sufficient time is required for same.
Plaintiff’s position:
Plaintiffs do not consent to the City’s request for an extension of time for Defendants to
respond to the Amended Complaint or for the parties to complete discovery. The City has known
the names and shield numbers of all four Individual Defendants named in the Amended
Complaint for over two months, as Plaintiffs sent their Amended Complaint to counsel for the
City on March 4, 2024 to request the City’s consent to file it pursuant to FRCP 15(a)(2). The
City has apparently taken no steps in the months since Plaintiffs filed their Amended Complaint
on March 11, 2024 to meet the deadline that the Court set for the City to respond.
The City now claims it needs an additional month and a half to respond to the Amended
Complaint because the Individual Defendants have only recently been served. But the timing of
service on the Individual Defendants is entirely attributable to the City’s delays in providing
Plaintiffs with accurate service information, as set forth below.
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Defendant Mary Tinsley-Thomas. Plaintiffs requested service information on March 7,
2024. Despite multiple follow-up emails, counsel for the City did not provide that
information until nearly three weeks later, on March 26, 2024, when they instructed
Plaintiffs to serve Defendant Tinsley-Thomas by email to counsel at the Department of
Correction. Plaintiffs did so on March 29, 2024 and counsel for the Department of
Correction responded confirming that he agreed to accept service on April 1, 2024. The
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deadline for Defendant Tinsley-Thomas to respond to the Amended Complaint was April
19, 2024, but Defendant Tinsley-Thomas has not yet responded.
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Defendant Beethoven Joseph. Plaintiffs requested service information on March 7,
2024. The City twice provided Plaintiffs with incorrect service addresses for Defendant
Joseph, causing Plaintiffs to incur unnecessary process server costs. The City finally
provided Plaintiffs with the correct address on May 3, 2024. Plaintiffs served Defendant
Joseph on May 7, 2024.

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Defendant Jalil Telemaque. Plaintiffs requested service information on March 7, 2024.
The City provided Plaintiffs with an incorrect service address for Defendant Telemaque,
causing Plaintiffs to incur unnecessary process server costs. The City finally provided
Plaintiffs with the correct address on April 19, 2024. Plaintiffs served Defendant
Telemaque on April 23, 2024.

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Defendant Jeron Smith. Plaintiff requested service information on March 7, 2024. The
City provided service information for Defendant Smith on March 26, 2024. Defendant
Smith was served on April 23, 2024, on the same day Plaintiffs served Defendant
Telemaque and unsuccessfully attempted to serve Defendant Joseph for the second time.

Given that the delay in serving the Individual Defendants is the direct result of the City’s
failure to provide accurate service information in a timely manner, the City cannot use this as the
basis to extend Defendants’ deadlines to respond to the Amended Complaint. Nor is there any
reason to adjourn the deadline to complete fact discovery at this point. The fact that the City
apparently has not yet determined who will represent the Individual Defendants is no
justification, as the City has had over two months to do so. The City’s unjustified delay does not
warrant extending the fact discovery deadline.
Accordingly, the City respectfully requests that Defendants’ time to respond to Plaintiffs’
Amended Complaint be extended to June 27, 2024, and that the fact discovery deadline be
extended to August 29, 2024.
The City thanks the Court for its time and consideration.
Respectfully submitted,

Application granted in part. The Court
grants 30-day extension both for
defendants to respond to the Amended
Complaint and for fact discovery
deadline.

Dated: May 9, 2024
New York, New York

__/s/ ________________.
Jacquelyn Dainow
Assistant Corporation Counsel

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