Pettiford v. The City of Yonkers et al

Filing 167

OPINION AND ORDER: re: 153 MOTION for Reconsideration re; 151 Order on Motion for Leave to File Document filed by Brian D. Pettiford. For the foregoing reasons, Plaintiff's motion for reconsideration is denied. Plaintiff'srequest f or leave for oral argument and permission to file affidavits in support of the requested relief is further denied. The Clerk is respectfully requested to terminate the pending motion (Docket No. 153). SO ORDERED. (Signed by Magistrate Judge Judith C. McCarthy on 4/27/2020) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
BRIAN D. PETTIFORD,
Plaintiff,
OPINION AND ORDER
-against-

14 Civ. 6271 (JCM)

THE CITY OF YONKERS, YONKERS POLICE
OFFICER VINNIE DEVITO, YONKERS POLICE
OFFICER ALEX DELLADONNA, YONKERS
POLICE OFFICER PETER SCHWARTZ, YONKERS
POLICE OFFICER DENNIS MOLINA #646,
YONKERS POLICE OFFICER CHRISTIAN KOCH
#699, ALL DEFENDANTS INDIVIDUALLY AND
IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES
OF THE CITY OF YONKERS,
Defendants.
--------------------------------------------------------------X
On February 24, 2020, Plaintiff Brian D. Pettiford (“Plaintiff”) moved for reconsideration
under Rule 6.3 of the Local Civil Rules of the United States District Courts for the Southern and
Eastern District of New York (“Local Civil Rule 6.3”) of this Court’s Opinion and Order dated
February 13, 2020 (the “Order”), (Docket No. 151), which denied Plaintiff’s motion for leave to
amend his complaint to allege a Monell claim. (Docket Nos. 153, 154). Plaintiff also requests
leave for oral argument and permission to file affidavits in support of the requested relief.
(Docket No. 154 at 12 1). Defendants oppose the motion. (Docket No. 159). Plaintiff filed a
reply in further support of his motion. (Docket No. 160). For the reasons that follow, Plaintiff’s
motion for reconsideration is denied. 2

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All page number citations refer to the page number assigned upon electronic filing.

2

This action is before me for all purposes on the consent of the parties, pursuant to 28 U.S.C. § 636(c). (Docket No.
21).

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I. LEGAL STANDARD
“The decision to grant or deny [a motion for reconsideration under Local Civil Rule 6.3]
is within the sound discretion of the district court.” Dellafave v. Access Temporaries, Inc., No.
99 CIV. 6098(RWS), 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001). In the Second Circuit,
granting reconsideration “is an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” Peterson v. Home Depot U.S.A., Inc., No.
11 Civ. 5747 (ER), 2014 WL 1355622, at *1 (S.D.N.Y. Apr. 4, 2014) (quoting Parrish v.
Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)). The standard for granting a motion for
reconsideration is “strict,” and “reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court has overlooked—matters, in other words,
that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Thus, reconsideration requires a movant to
demonstrate “an intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error to prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotations omitted). To this end,
the movant “may not use a motion under Rule 6.3 to advance new facts, issues or arguments not
previously presented to the Court.” McGee v. Dunn, 940 F. Supp. 2d 93, 100 (S.D.N.Y. 2013)
(internal citations omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, No. 00 Civ.
3613(LAP), 2004 WL 1943099, at *2 (S.D.N.Y. Aug. 27, 2004) (holding that the movant may
not use the motion “to start a new round of arguments,” nor “should the Court be expected to
wade through lengthy papers that simply reiterate in slightly different form the arguments
already made in the party’s original papers.”). “The burden on the movant is high to ensure
finality in decisions, discourage repetitive arguments and to prevent a losing party from

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rearguing a decision after examination in an attempt to correct prior inadequacies.” Rijos v. New
York Cmty. Bancorp, Inc., No. CV-09-5720, 2011 WL 1496800, at *1 (E.D.N.Y. Apr. 15, 2011).
II. BACKGROUND
Familiarity with the relevant facts and procedural history of this case is presumed. In
brief, Plaintiff brings this action under 42 U.S.C. § 1983 against Defendants City of Yonkers
(“Yonkers”), Police Officer Vinnie Devito, Police Officer Alex Delladonna, Police Officer Peter
Schwartz, Police Officer Dennis Molina, and Police Officer Christian Koch (“Koch”)
(collectively “Defendants”), alleging an illegal search, false arrest, malicious prosecution, and
wrongful conviction arising from an allegedly fraudulent search warrant affidavit (the “Search
Warrant Affidavit”). On July 19, 2019, Plaintiff filed his motion for leave to amend his
complaint to include, among other things, two additional claims: (1) a claim of the denial of due
process and a fair trial, and (2) a claim against Defendant Yonkers pursuant to Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658 (1978). (Docket Nos. 136, 137, 138). In its
February 13, 2020 Order, the Court granted Plaintiff’s motion to add a cause of action for the
denial of due process and a fair trial, and denied Plaintiff’s motion to add a Monell claim against
Yonkers. (Docket No. 151). The Court concluded that Plaintiff’s proposed Monell claim was
futile on the ground that he failed to plausibly allege a claim under any of the four Monell
theories. (Id. at 12-17). On February 18, 2020, Plaintiff filed his Amended Complaint. (Docket
No 152).
III. DISCUSSION
In the instant motion, Plaintiff argues that reconsideration of the Court’s Order denying
his Monell claim as futile is appropriate because “new evidence” derived from Koch’s
deposition, taken on November 19, 2019, has revealed facts to support a Monell claim under a

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failure to train or supervise theory. (Docket No. 154 at 5). Defendants oppose the motion on the
grounds that: 1) Plaintiff raises entirely new legal theories as the basis for leave to amend, 2)
Plaintiff has not sufficiently demonstrated that controlling law exists to alter the Court’s Order,
and 3) Plaintiff’s citations to the record are insufficient to plausibly allege a Monell claim.
(Docket No. 159). The Court has reviewed the parties’ submissions, and finds that Plaintiff has
not shown that the Court has “overlooked the controlling decisions or factual matters that were
put before the Court in the underlying motion.” Chepilko v. Cigna Life Ins. Co. of New York, 952
F. Supp. 2d 629, 631 (S.D.N.Y. 2013). Furthermore, although Plaintiff bases his motion upon
“new” evidence, the Court finds that Plaintiff’s proffered evidence is not, in fact, “newly
discovered,” and thus not properly before the Court on a motion for reconsideration. Finally,
even assuming Plaintiff’s evidence is newly discovered, it does not alter the Court’s previous
conclusion that Plaintiff did not plausibly allege a Monell claim for failure to train or supervise.
A. Plaintiff’s Proffered Evidence is Not “Newly Discovered”
The Court is not persuaded that the evidence set forth by Plaintiff is “newly discovered.”
In order for evidence to be considered “newly discovered” on a motion for reconsideration, it
must be “evidence that was truly newly discovered or could not have been found by due
diligence.” United States v. Potamkin Cadillac Corp., 697 F.2d. 491, 493 (2d Cir. 1983) (internal
quotations omitted); see also Lima LS PLC v. Nassau Reinsurance Grp. Holdings, L.P., 160 F.
Supp. 3d 574, 578 (S.D.N.Y. 2015) (same). Newly discovered evidence must not have been
available prior to entry of the judgment leading to reconsideration. See Lima, 160 F. Supp. 3d at
578. (which denied motion for reconsideration based on evidence “in response to the court’s
rulings” when this evidence was available “prior to the Court’s Order.”); Goldstein v. New York,
No. 00 Civ. 7463(LTS), 2001 WL 893867, at *1 (S.D.N.Y. Aug. 7, 2001) (which held that a

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motion to reconsider is not an opportunity “to put forward additional arguments which the
movant could have made, but neglected to make before judgment.”) (internal quotations
omitted). Thus, “only when evidence is truly newly discovered does it become a proper grounds
for a motion for reconsideration.” Atlantic States Legal Foundation, Inc. v. Karg Bros., Inc., 841
F. Supp. 51, 56 (N.D.N.Y. 1993).
Here, although Plaintiff conducted Koch’s deposition after the completion of the briefing
on Plaintiff’s motion to amend, it cannot be said that Koch’s deposition testimony from
November 2019 was not available to Plaintiff prior to this Court’s February 13, 2020 Order. See
Kopperl v. Bain, No. 3:09-CV-01754(CSH), 2016 WL 310719, at *3 (D. Conn. Jan. 26, 2016)
(which denied motion to reconsider based on evidence derived from deposition that was
conducted prior to court’s ruling, and noting, “the standard applied in motions for
reconsideration is whether the evidence was discovered prior to the ruling, not the completion of
briefing.”). Accordingly, the Court finds that Plaintiff’s proffered evidence is not newly
discovered, and therefore, not properly before the Court on his motion for reconsideration.
B. Plaintiff’s Proffered Evidence Would Not Alter the Court’s Previous Order
Even assuming, arguendo, that Plaintiff’s proffered evidence constitutes newly
discovered evidence, it still does not warrant granting Plaintiff reconsideration of the Court’s
Order. As discussed in the Order, a municipality may be liable for the failure to supervise its
subordinates “only where the need to act is so obvious, and the inadequacy of the current
practices so likely to result in a deprivation of federal rights, that the municipality or official can
be found deliberately indifferent to the need.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.
2007). “Such a complaint must allege that ‘the need for more or better supervision . . . was
obvious,’ but that the defendant ‘made no meaningful attempt’ to prevent the constitutional

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violation.” Missel v. Cty. of Monroe, 351 F. App’x 543, 546 (2d Cir. 2009) (quoting Amnesty
Am. v. Town of W. Hartford, 36 F.3d 113, 127 (2d Cir. 2004)). Moreover, to state a claim based
on the failure to train, a plaintiff “must allege facts which support an inference that the
municipality failed to train its police officers, that it did so with deliberate indifference, and that
the failure to train caused his constitutional injuries.” Triano v. Town of Harrison, NY, 895 F.
Supp. 3d 526, 540 (S.D.N.Y. 2012). A plaintiff must also “plausibly allege a specific deficiency
in the municipality’s training.” Tieman v. City of Newburgh, No. 13-CV-4178(KMK), 2015 WL
1379652, at *22 (S.D.N.Y. Mar. 26, 2015).
In its Order, the Court found that Plaintiff failed to allege facts sufficient to plead a
Monell claim under a failure to train or supervise theory. (Docket No. 151 at 14-17). Regarding
Plaintiff’s proposed failure to supervise claim, the Court held that Plaintiff did not plausibly
allege that Yonkers was on notice of Koch’s behavior, or that when Yonkers became aware of
such behavior, Yonkers deliberately ignored it. (Id. at 15). The Court held that Plaintiff’s
allegations relating to a failure to train were also deficient because they were conclusory. (Id. at
16). Specifically, the Court held that the allegations did “not specify any deficiency about
Yonker’s training program, nor do they explain how any deficiency in the training caused his
injury.” (Id.) (emphasis added). Plaintiff’s present motion does not change this conclusion.
In support of his motion for reconsideration, Plaintiff maintains that his Monell claim
under the theory of failure to train or supervise is supported by Koch’s deposition testimony in
which he testified that he was never properly trained as to “the amount of information” that was
required to support a search warrant affidavit. (Docket No. 154 at 6-12). Plaintiff also cites to
testimony in which Koch claims that “his training in search warrant applications was so deficient
that at the time he sponsored the Pettiford affidavit in March of 2012, he ‘didn’t know what an

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affidavit was,’ and believed he was just filling in blanks on a form.” (Id. at 7). Plaintiff further
points to testimony in which Koch states that at the time he executed the Search Warrant
Affidavit, “this was just a form . . . This is a form where you filled in the blanks, and that’s all I
did. You go right in front of a judge for signature, and as long as the judge signed it, no one
looked at it, and everybody was on board, and that’s it.” (Id. at 8). Plaintiff maintains that this
demonstrates that “the entire supervisory apparatus in the narcotic’s division” was indifferent to
his behavior. (Id.).
Plaintiff further argues that Koch’s deposition testimony shows that his “lack of
supervision and training in police investigative work extended well-beyond search warrants into
every facet of his police work in the narcotics division.” (Id. at 9). For instance, Plaintiff cites to
testimony in which Koch states that in his capacity as a Yonkers’ police officer, he “went to
training three times a year,” that these trainings were “very textbook and it wasn’t very detailed,”
and that he was never sent to a formal training school for Yonkers Police detectives. (Id.).
Plaintiff maintains that “the [Search Warrant Affidavit] submitted in the Pettiford investigation
has all of the same infirmities evidenced by [] Koch’s lack of supervision and training.” (Id. at
10). Plaintiff further cites to Koch’s testimony stating that when he drafted the Search Warrant
Affidavit, he did not know what it means to be “duly sown and deposed.” (Id. at 11). Finally,
Plaintiff maintains that Koch’s purported lack of training caused Plaintiff’s wrongful conviction.
(Id. at 11-12). Plaintiff quotes Koch’s deposition testimony in which he testified that when he
wrote the Search Warrant Affidavit, he “believed he was simply filling out a form, a form that he
had no obligation to certify was accurate and truthful.” (Id. at 11). Koch explained at his
deposition that it was his “obligation to fill out the form. [He] didn’t understand the severity of

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signing to something, and having not be true or instances in it, that turned out to be not true,
where [he] was open to some kind of liability.” (Id. at 12).
Although troubled by Koch’s testimony, the Court finds that Plaintiff’s proffered
evidence does not alter its previous conclusion that Plaintiff’s allegations do not give rise to a
Monell claim premised on a failure to train or supervise. See Rijos, 2011 WL 1496800, at *1
(which denied a motion for reconsideration where new evidence derived through discovery “does
nothing to change the court’s previously stated conclusion that Plaintiff’s allegations” did not
state a claim). Plaintiff’s new evidence still fails to plausibly allege a specific deficiency in the
training program. Furthermore, there is no new evidence that meets the “stringent standard” that
any alleged failure to train or supervise was done with a “deliberate indifference,” or that these
failures caused Plaintiff’s specific constitutional violation. See Triano, 895 F. Supp. 2d at 534,
540. Indeed, Plaintiff’s Amended Complaint alleges that “Koch signed the Search Warrant
Affidavit knowing it to contain false information.” (Docket No. 152 at 7) (emphasis added).
However, there are no new facts in Plaintiff’s motion giving rise to an inference that Koch’s
alleged behavior of knowingly executing the fraudulent Search Warrant Affidavit was the result
of any lack of training or supervision on the part of Yonkers. See Simms v. City of New York, No.
10-CV-3420(NGG)(RML), 2011 WL 4543051, at *2 (S.D.N.Y. Sept. 28, 2011) (which
dismissed failure to train claim where there was “not enough factual material in the [c]omplaint
for the court to reasonably infer that the police misconduct . . . was the result of anything other
than the individual acts of the arresting officers.”); Doe v. City of New York, No. 09-CV9895(BSJ), 2012 WL 2900483, at *2 (S.D.N.Y. July 2, 2012) (“The [a]mended [c]omplaint
contains no facts elaborating on (or even theorizing as to) the defective nature of the [] training
program, let alone an allegation as to how a defect in training … caused her harm.”) (emphasis

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added); Alwan v, City of New York, 311 F. Supp. 3d 570, 579 (E.D.N.Y. 2018) (“After reviewing
this evidence, the court cannot discern any ‘specific deficiency in the city’s training program’
that was ‘closely related’ to Plaintiff’s alleged injuries.”) (internal citations omitted). Thus, “any
subsequent amendment to the complaint based on this new evidence presented” would still be
futile. Audio Emotion S/A v. McIntosh Grp., Inc., 15 Civ. 05735(AT)(KNF), 2017 WL 6492506,
at *3 (S.D.N.Y. Jan. 11, 2017).
Because Plaintiff’s proffered new evidence has not cured any of the deficiencies
previously identified by the Court, it would not change the conclusion reached by the Court in its
previous Order. See Audio Emotion, 2017 WL 6492506, at *3 (which denied a motion for
reconsideration where “Plaintiff’s new evidence does not cure the underlying deficiencies
previously identified by the Court”); Almonte v. City of Long Beach, No. CV. 04-4192(JS)(JO),
2005 WL 1971014, at *3 (E.D.N.Y. Aug. 16, 2005) (which denied motion for reconsideration
where the court was “confident” that new evidence “would not affect [its] ruling on
reconsideration). In sum, Plaintiff’s proposed evidence does not constitute newly discovered
evidence that, “had [it] been considered, might have reasonably altered the result” of the Court’s
Order denying Plaintiff’s motion to amend his complaint to assert a Monell claim. Range Rd.
Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000) (internal quotations
omitted). For these same reasons, Plaintiff fails to show there is a “clear error to correct or
manifest injustice to prevent.” Audio Emotion, 2017 WL 6492506, at *3. Accordingly,
Plaintiff’s motion for reconsideration of the Court’s Order denying his motion to amend to allege
a Monell claim is denied.

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IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is denied. Plaintiff’s
request for leave for oral argument and permission to file affidavits in support of the requested
relief is further denied. The Clerk is respectfully requested to terminate the pending motion
(Docket No. 153).
Dated:

April 27, 2020
White Plains, New York
SO ORDERED:

_______________________________
JUDITH C. McCARTHY
United States Magistrate Judge

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