Eckardt v. City of White Plains 87 A D.3d 1049 (N.Y. App. Div. 2011) . 930 N.Y.S.2d 22 . 2011 N. Y. Slip Op. 6548 Decided Sep 20, 201 1 2011-09-20 ORDERED that the appeal by the defendant White Plains Police Department is dismissed, Dean ECKARDT, respondent, v.CITY OF WHITE without costs or disbursements, as it is not PLAINS, et al., appellants, et al., defendants. aggrieved by the order appealed from ( see CPLR 551 1), and it is further, Joseph A. Maria, P.C., White Plains, N.Y. (Frances Dapice Marinelli of counsel), for appellants Laub ORDERED that the order is modified, on the law, Delaney LLP, White Plains, N.Y. (Montgomery by deleting the provisions thereof denying those Delaney of counsel), for respondent branches of the motion of the defendants City of White Plains, the White Plains Police Department, MARK C. DILLON, J.P., DANIEL D. and Police Officer Aragon # 64 which were for ANGIOLILLO, THOMAS A. DICKERSON, and summary judgment dismissing the second, third, JEFFREY A. COHEN, JJ. and fourth causes of action insofar as asserted against the defendant City of White Plains and the 24 +24 Joseph A. Maria, P.C., White Plains, N.Y. third cause of action insofar as asserted against the (Frances Dapice Marinelli of counsel), for defendant Police Officer Aragon # 64, and appellants. Laub Delaney LLP, White Plains, N.Y. substituting therefor provisions granting those (Montgomery Delaney of counsel), for branches of the motion; as so modified, the order respondent. is affirmed insofar as appealed from by the 1049+1049 In an action to recover damages for assault defendants City of White Plains and Police Officer and battery, intentional infliction of emotional Aragon # 64, without costs or disbursements. distress, negligent hiring and supervision, and for The plaintiff was arrested for disorderly conduct civil rights violations pursuant to 42 USC $ 1983, and resisting arrest. He alleged that, after he was the defendants City of White Plains, White Plains brought to police headquarters, one of the Police Department, and Police Officer Aragon # arresting police officers unnecessarily used a taser 105064 appeal, as limited *1050 by their notice of on him several times while he was handcuffed. appeal and brief, from so much of an order of the The officer testified at his deposition that he only Supreme Court, Westchester County (Liebowitz, used a taser on the plaintiff once because the J.), entered July 19, 2010, as, upon removing the plaintiff continually attempted to assault officers White Plains Police Department as a defendant in inside police headquarters. According to the the action, denied those branches of their motion officer, the plaintiff was not handcuffed at the which were for summary judgment dismissing the 25 time. *23 complaint insofar as asserted against the defendants City of White Plains and Police Officer The plaintiff commenced this action against the Aragon # 64. defendant City of White Plains, the White Plains Police Department, and several police officers,including the defendant Police Officer Aragon # With regard to the third cause of action asserted 64 (hereinafter Officer Aragon), asserting causes under New York common law, generally, an of action to recover damages for assault and employer will be held liable for torts committed battery (the first cause of action), intentional by an employee who is acting within the scope of infliction of emotional distress (the second cause his or her employment under a theory of of action), negligent hiring and supervision (the respondeat superior, and "no claim may proceed third cause of action), and civil rights violations against the employer for negligent hiring, pursuant to 42 USC $ 1983 (the fourth cause of retention, supervision or training" ( Talavera v. action). The City, the White Plains Police Arbit, 18 A.D.3d 738, 738, 795 N.Y.S.2d 708; see Department, and Officer Aragon moved for Karoon v. New York City Ir. Auth., 241 A.D.2d summary judgment dismissing the complaint 323, 659 N.Y.S.2d 27). Here, the actions insofar as asserted against them. The Supreme complained of occurred during the arrest and Court, inter alia, denied those branches of the detention of the plaintiff by several police officers, motion which were for summary judgment including Officer Aragon. It is beyond dispute that dismissing the complaint insofar as asserted these actions were performed by the officers in the 1051 against the City $1051 and Officer Aragon scope of their employment with the City. (hereinafter together the appellants). We modify. Accordingly, the plaintiff may not properly proceed with a cause of action to recover damages The appellants failed to make a prima facie for negligent hiring and supervision, and the showing of their entitlement to judgment as a Supreme Court should have granted those matter of law dismissing the first cause of action branches of the motion which were for summary insofar as asserted against them. We note that, unlike a claim pursuant to 42 USC $ 1983, a judgment dismissing the third cause of action insofar as asserted against the appellants. Contrary municipality may be vicariously liable on a state to the plaintiff's contention, the exception to this law assault and battery claim for torts committed by a police officer under a theory of respondeat general rule ( see generally Karoon v. New York City Dr. Auth., 241 A.D.2d 323, 659 N. Y.S.2d 27) superior ( see Williams v. City of White Plains, 718 F.Supp.2d 374, 381; see also Merritt v. Village of is inapplicable to the circumstances of this case Mamaroneck, 233 A.D.2d 303, 304, 649 N.Y.S.2d based on the record before the Supreme Court 475). As for the fourth cause of action, "42 USC $ 1983 The appellants did, however, establish the City's provides that '[every person who, under color of any statute, ordinance, regulation, custom, or entitlement to summary judgment dismissing the 1052usage ... subjects, or causes to be *1052 subjected, second cause of action insofar as asserted against any citizen of the United States ... to the it, as " '[plublic policy bars claims for intentional infliction of emotional distress against a 26 *26 deprivation of any rights, privileges, or governmental entity" " ( Ellison v. City of New immunities secured by the Constitution and laws, Rochelle, 62 A.D.3d 830, 833, 879 N. Y.S.2d 200, shall be liable to the party injured" " ( Hudson Val. quoting Liranzo v. New York City Health & Hosps. Mar., Inc. v. Town of Cortlandt, 79 A.D.3d 700,Corp., 300 A.D.2d 548, 548, 752 N.Y.S.2d 568). 703, 912 N.Y.S.2d 623). "A municipality is not The appellants failed to make a prima facie liable under 42 USC $ 1983 for an injury inflicted showing of Officer Aragon's entitlement to solely by its employees or agents" ( id. at 703, 912 summary judgment dismissing this cause of action N. Y.S.2d 623; see Monell v. New York City Dept. insofar as asserted against him. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611). A municipality "cannot be held liable pursuant to 42 USC $ 1983 based solely setext Eckardt v. City of White Plains 87 A.D.3d 1049 (N.Y. App. Div. 2011) upon the doctrine of respondeat superior or trained by the City with regard to the use of tasers vicarious liability" ( Lopez v. Shaughnessy, 260 ( see Mays v. City of Middletown, 70 A.D.3d 900, A.D.2d 551, 552, 688 N. Y.S.2d 614; see Canton v. 895 N.Y.S.2d 179). In opposition, the plaintiff Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d failed to raise a triable issue of fact. However, the 412; Jackson v. Police Dept. of City of N.Y, 192 Supreme Court properly denied that branch of the A.D.2d 641, 642, 596 N.Y.S.2d 457, cert. denied motion which was for summary judgment 511 U.S. 1004, 114 S.Ct. 1370, 128 L.Ed.2d 46) dismissing the fourth cause of action insofar as "However, "[a] 42 USC $ 1983 action may lie asserted against Officer Aragon. "Claims that law against a municipality if the plaintiff shows that enforcement personnel used excessive force in the the action that is alleged to be unconstitutional course of an arrest are analyzed under the Fourth either implement(s] or execute(s] a policy 1053 Amendment and its standard of *1053 objective statement, ordinance, regulation, or decision reasonableness" ( Moore v. City of New York, 68 officially adopted and promulgated by that body's A.D.3d 946, 947, 891 N.Y.S.2d 156; see Graham officers or has occurred pursuant to a practice so v. Connor, 490 U.S. 386, 394-395, 109 S.Ct. 1865, permanent and well settled as to constitute a 104 L.Ed.2d 443). "The reasonableness of an custom or usage with the force of law" " ( Hudson officer's use of force must be 'judged from the Val. Mar, Inc. v. Town of Cortlandt, 79 A.D.3d at perspective of a reasonable officer on the scene, 703, 912 N. Y.S.2d 623, quoting Maio v. Kralik, 70 rather than with the 20/20 vision of hindsight* * ( A.D.3d 1, 10-11, 888 N.Y.S.2d 582 [internal Rivera v. City of New York, 40 A.D.3d 334, 341, quotation marks and citations omitted); see 836 N. Y.S.2d 108, quoting Graham v. Connor, 490 Bassett v. City of Rye, 69 A.D.3d 667, 668, 893 U.S. at 396, 109 S.Ct. 1865). Here, the appellantsBassett v. City of Rye, 69 A.D.3d 667, 668, 893 U.S. at 396, 109 S.Ct. 1865). Here, the appellants N. Y.S.2d 179). Where, as here, a plaintiff "seeks failed to satisfy their prima facie burden of to establish that the municipality is liable by virtue eliminating all triable issues of fact as to whether of the inadequate training of its police officers, the Officer Aragon's use of force was objectively plaintiff must plead and prove that the 27 reasonable under the circumstances. *27 municipality's failure to train its police officers in a relevant respect evidences a deliberate The parties' remaining contentions are without merit. indifference to the rights of its inhabitants" ( Jackson v. Police Dept. of City of N.Y, 192 A.D.2d at 642, 596 N.Y.S.2d 457; see Canton v. Harris, 489 U.S. at 389-390, 109 S.Ct. 1197). "To sustain a claim based upon inadequate training, a plaintiff must demonstrate not only that there is a deficiency in the actor's training, but also that the deficiency identified is "closely related to the ultimate injury" " ( Mays v. City of Middletown, 70 A.D.3d 900, 903, 895 N.Y.S.2d 179, quoting Canton v. Harris, 489 U.S. at 391, 109 S.Ct. 1197). Here, the appellants established the City's prima facie entitlement to judgment as a matter of law on the fourth cause of action insofar as asserted against it. The appellants made a prima facie showing that the police officers were adequately casetext
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