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Case 1:13-cv-02299-ENV-RER

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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SHAKEEM BOYKINS, KEVIN WINT, and PRINCETON ANTOINE,

-against-

Plaintiffs,

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COUAr,

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BROOKLYN OFFICE

MEMORANDUM & ORDER

13-cv-2299 (ENV) (RER)

CITY OF NEW YORK, POLICE OFFICER VLADIMIR RAVICH, SHIELD NO. 14673, POLICE OFFICER THEODORE PETERS, SHIELD :

NO. 13285, SERGEANT THOMAS TURNER,

SHIELD NO. 02747, POLICE OFFICE JOHN DOE

l,

Defendants.

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VIT ALIANO, D.J.,

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On April 16, 2013, Shakeem Boykins, Kevin Wint and Princeton Antoine initiated this

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action against defendants the City of New York ("the City") and Vladimir Ravich 1 alleging I

violations of their constitutional rights, pursuant to 42 U.S.C. § 1983, as well as pendent state

law claims of false arrest, false imprisonment, malicious prosecution, assault and battery,

negligent hiring and retention of employees, and respondeat superior liability. Central to all i

claims are allegations by plaintiffs that, on February 7, 2012, they were assaulted, arrested

without probable cause, and maliciously prosecuted on a number of offenses ranging from gang

assault to attempted petit larceny, all of which were dismissed when a grand jury failed to indict.

On April 24, 2015, defendants moved for partial summary judgment. For the reasons stated

below, the motion, with respect to those claims not withdrawn by plaintiffs, see note 4, infra, lis

1 Plaintiffs amended the complaint on October 11, 2013 to add defendants Theodore Peters and Thomas Turner.

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and began punching Wint in the face and nose, while onlookers gathered and yelled. Boykins ,

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Dep. at 70: 12-21. Plaintiffs were ordered to get on the ground, and all were eventually handcuffed and arrested. Defs. 56.1 ~~ 33-34. The phones recording the incident were confiscated and never returned. Wint Dep. 53:7-12.

Plaintiffs were charged with an assortment of crimes, including gang assault, two counts

of attempted robbery, two counts of attempted criminal possession of a weapon, attempted felony assault, obstruction of government administration, resisting arrest and attempted petit larceny. Defs. 56.1at~6; Compl. at~ 34. All charges were dismissed upon the grand jury's 1 failure to indict. Compl. at~ 38. Defendants claim, and plaintiffs deny, that Antoine, Boykins, and Wint are members of or associates of the "Loopy Gang." Compare Defs. 56.1 at~~ 86-91 with Plaintiffs Local CiJl Rule 56.l(b) Response to Defendants' Statement of Undisputed Facts, ECF Dkt. No. 35 ("Pls.!

56.1 ")at ii~ 86-91; Antoine Dep. 95:8-10; Boykins Dep. 93:1-25. Defendants also allege,

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plaintiffs again deny, that plaintiffs failed to appear or otherwise comply with notices of a N. Yi.

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Gen. Mun. L. § 50-h hearing for each plaintiff related to the Notice of Claims each filed. Compare Defs. 56.1 ~~ 92-94; Declaration of Marilyn Bodner, attached as Exhibit C to the Reply Declaration of Joshua J. Lax, ECF Dkt. No. 39 ("Bodner Deel.") at ~~ 9-18 with Pis. 56.1 ~~ 92-

94.

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Standard for Summary Judgment It is hornbook law that a federal district court must grant summary judgment upon motion and finding, based on the pleadings, depositions, interrogatory answers, admissions, affidavits[ and all other admissible evidence, that "there is no genuine issue as to any material fact and tl1at the moving party is entitled to a judgment as a matter oflaw." Fed. R. Civ. P. 56; Anderson vl

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Case 1:13-cv-02299-ENV-RER Document 40 Filed 08/16/16 Page 4 of 13 PageID #: 387 Liberty Lobby, Inc.,
Case 1:13-cv-02299-ENV-RER
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Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d (1986). The initial burd~n
is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91L.Ed.2d 265 (1986); Feingoldv. New
York, 366 F.3d 138, 148 (2d Cir. 2004). In determining whether the moving party has met this
burden, the motion court must construe all evidence in a light most favorable to the nonmoving
party, resolving all ambiguities and inferences in its favor. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Gibbs-Alfano v.
Burton, 281 F .3d 12, 18 (2d Cir. 2002). However, "the mere existence of some alleged factuai
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477
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U.S. at 247-48 (emphasis original); Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d

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83, 90 (2d Cir. 2002). Material facts are those which, given the substantive law, might affect the suit's outcome. Anderson, 477 U.S. at 248. If the moving party makes aprimafacie showing that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and put forth "specific facts :

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showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Davis v. New York, 316 Fjd I 93, 100 (2d Cir. 2002). In so doing, the nonmoving party may not rely on conclusory allegati9ns or speculation. Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (citing

D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)); Fed.

R. Civ. P. 56 ("Supporting

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and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify fo the matters stated therein."). Thus, to defeat a motion for summary judgment, the nonmoving I party "must do more than simply show that there is some metaphysical doubt as to the material

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facts." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Matsushita, 415

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U.S. at 586). Nonetheless, the nonmoving party need not make a compelling showing; it need:

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merely show that reasonable minds could differ as to the import of the proffered evidence. R.fl.

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Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997).

Discussion

Defendants move for partial summary judgment on the following grounds: first, that

probable cause supported plaintiffs' arrests, defeating their false arrest claims; second, that the

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officers should be granted qualified immunity, because they had an objectively reasonable belief

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that their actions were lawful; third, that plaintiffs have failed to offer proof supporting a claim

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of municipal liability; fourth, that plaintiffs' state law claims must fail because they defaulted on

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conditions precedent, namely, 50-H hearings; and fifth, that plaintiffs' claims for negligent hiring I

and retention are unsupported by the record. 4

  • A. False Arrest

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Defendants argue that plaintiffs' false arrest claims fail because probable cause existed to

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support an arrest for obstructing government administration ("OGA"). A claim for false arrest

requires that a) the defendant intentionally confined plaintiff; b) plaintiff was conscious of the.

confinement; c) plaintiff did not consent; and d) the confinement was not otherwise privileged.

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Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003). Probable cause for the arrest is a I

complete defense because it justifies the arrest. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

1996). The existence of probable cause must be based on the totality of the circumstances, an~

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the trial court must consider the facts available to the officer at the time of the arrest. Ricciutt

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4 Plaintiffs conceded defendants' arguments on Mone/I liability and negligent hiring and supervision in their opposition. Pl. Opp. at 15, 17. Those claims are therefore deemed withdrawn and are dismissed with prejudice.

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rule, they are limited. "Most of these cases involve warnings designed to interfere with

imminent arrests that were made directly to the people targeted for arrest." Dowling v. City oi

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New York, No. l l-CV-4954 (NGO) (RML), 2013 WL 5502867, at *5 (E.D.N.Y. 2013).

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Instructive is Husbands ex rel. Forde v. City of New York, No. 05-CIV-9252 (NRB), 2007 WI?

2454106, at *13 (S.D.N.Y. Aug. 16, 2007) aff'd, 335 F. App'x 124 (2d Cir. 2009), where

plaintiff was talking to the arrestee while several police officers attempted to restrain and

handcuff him. The arrestee, who had been seen firing a gun, had been aggressively evading

handcuffs and trying to get up off the ground. Id. at *2. That plaintiffs actions seriously

distracted the officers, who believed the arrestee still had a gun, from protecting themselves from

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physical harm. Similarly, in People v. Tarver, 188 A.D.2d 938, 938 (App. Div. 3d Dep't 1992),

the arrestee approached from behind an officer, whose back was to the arrestee, while he was

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struggling to arrest a suspect on the ground, supporting the arrest of plaintiff for OGA. Finally,

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Decker v. Campus, 981 F. Supp. 851, 858 (S.D.N.Y. 1997) involved an arrestee who approacHed

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a rescue worker and touched his arm, asking questions, while the worker attempted to save

someone's life.

Not one of those cases appears to be applicable here, where plaintiffs testified they we~e

merely standing outside a building when Officer Ravich, without provocation, they claim,

grabbed one of the juveniles and began to beat him with his walkie-talkie as he clung to a nearby I

fence. Punctuating the defense need to latch onto an exception, it is undisputed that plaintiffs i

never physically intervened in the arrest of L.B. Wint Dep. 62:3-16; Ravich Dep. 102:4-6. They

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say they did not speak to the arrestee, and there is no evidence that the officer believed L.B. hJd

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a weapon or otherwise presented a threat to the officer or the public. Plaintiffs, according to i

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their testimony and undisputed by defendants, attempted to record the event, from a distance of

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at least arm's length, but made no physical contact and did not attempt to distract from or

interfere with the arrest. Antoine Dep. 40:8-10. They immediately complied with the officer's

orders to get down, and remained still until officers handcuffed and arrested them. Antoine olp.

at 57:2-12. Defendants offer no evidence of probable cause supporting a belief that a non-OG~

punishable violation of law was afoot justifying police involvement, nor have they offered

testimony that the safety of the officers or anyone else was endangered. 5

Furthermore, the contention that plaintiffs' speech and video recording constituted a

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criminal offense (OGA) raises significant First Amendment concerns. Citizens have a First

Amendment right to verbally criticize police conduct and to film police activity in a public,

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nonrestricted area. "[T]he First Amendment protects a significant amount of verbal criticism and

 

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challenge directed at police officers. 'Speech is often provocative and challenging

[But it] is

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nevertheless protected against censorship or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that rises far above public inconvenience,

 

annoyance, or unrest."' City of Houston, Tex. v. Hill, 482 U.S. 451, 461, I 07 S. Ct. 2502, 250r,

96 L. Ed. 2d 398 (1987) (quoting Terminie/lo v.

Chicago,

337 U.S. I, 4, 69 S. Ct. 894, 895, 9j L.

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Ed. 1131 (1949)); Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379 (S.D.N.Y. 20l5)

 

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("[T]he dissemination of information relating to alleged governmental misconduct

l[ies] at the

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core of the First Amendment.") (quoting Gentile v. State Bar of Nev., 501 U.S. 1030, 1034-3~,

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5 Defendants argue that "plaintiffs were known as gang members" and that fact should be considered "in determining whether plaintiffs actions were meant to disrupt the police action.~· Defendants' Memorandum of Law in Support of its Motion to Dismiss ("Def. Mem.") at 7. ' Plaintiffs, however, have vigorously denied membership in any gang. Pls. 56.1 at~~ 86-91; Antoine Dep. 95:8-10; Boykins Dep. 93:1-25. Facts must be construed in favor of the nonmoving party, so adopting the defense version of facts on this motion would be inappropri~te. In any event, defendants have provided no evidence whatsoever that plaintiffs were involved ih, suspected of, or related to any alleged criminal activity, gang-related or otherwise, that would; independently support plaintiffs' arrests.

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111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)).

Defendants' position is also squarely at odds with the NYPD Patrol Guide's protocols I

and procedures, which states that "Speech alone," "Taking photographs, videotapes or tape

recordings," or "Remaining in the vicinity of the stop or arrest" are not grounds for arrest for i

OGA. NYPD Patrol Guide§ 208-03, attached as Exhibit A to the Declaration of Leo Glickman

 

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("Glickman Deel."). Video recording and critical speech only lose that protection when they .

 
 

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actually impede an officer from performing his duties. Higginbotham, 105 F. Supp. at 379-80:

 

No such facts are present; at least, not without genuine dispute. Summary judgment sought bYi

 

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defendants on these grounds is, therefore, denied.

 

B.

Qualified Immunity

Defendants next argue that, even if probable cause did not support plaintiffs' arrests,

 

qualified immunity shields the officers from liability. The doctrine of qualified immunity applies I

when defendants did not "violate clearly established statutory or constitutional rights of which la

reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992).

 
 

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"(Q]ualified immunity

is sufficient to shield executive employees from civil liability under§

 
 

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1983 if either (I) their conduct did not violate clearly established rights of which a reasonable 1

person would have known, or (2) it was objectively reasonable [for them] to believe that their I

 

acts did not violate these clearly established rights." Amore v. Navarro, 624 F.3d 522, 530 (2d

 

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Cir.

2010) (quoting Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010)). 6 An officer asserting I

 

6 Under Saucier v. Katz, 533 U.S. 194 (2001), the trial court had to conduct a two-step inquiry:! first, to "determine whether the facts, taken in the light most favorable to the party asserting I injury, show a violation of a constitutional right"; and second, to "determine whether the constitutional right was 'clearly established' such that '[t]he contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." 1

Holeman

v. City of New London, 425 F.3d 184, 189 (2d Cir. 2005) (quoting Saucier, 533 U.S. at

 

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qualified immunity must show that "it was objectively reasonable for him at the time of the

challenged action to believe his acts were lawful." Taravella v. Town of Wolcott, 599 F.3d 129,

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134 (2d Cir. 2010) (internal quotation marks omitted)). See also Okin v. Village o/Cornwalll

On-Hudson Police Dep 't, 577 F.3d 415, 433 (2d Cir. 2009) ("A police officer who has an

objectively reasonable belief that his actions are lawful is entitled to qualified immunity.").

The objective reasonableness of the officers' actions is, at this point in the litigation, a1

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cont~ntiously disputed issue of fact. In the light most favorable to plaintiffs asserting injury, I

there can be little argument that defendants have not now carried their burden of showing the I

officers' actions were objectively reasonable and did not violate clearly established law.

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Defendants allege that plaintiffs "stated to the officer to stop, they shined a light on the officet,

and they stood around the officer and L.B." Defs. Mem. at 11. 7 There is no sworn testimony Ion

behalf of Officer Ravich or anyone else that plaintiffs actually interfered with their duties. On

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the contrary, Antoine testified, that when told by the officers to get down on the ground, I

plaintiffs immediately complied. Antoine Dep. at 57:2-12.

As noted earlier, the law is well established that there must be some physical aspect to the

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interference to constitute OGA. "New York cases are clear that mere words, without more, dp

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not satisfy the standard for obstructing governmental administration." Dowling, 2013 WL I

5502867, at • 8. This is hardly a novel revelation. New York's high court in People v. Case, i42

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201-06). Following Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 813, 172 L. Ed.!2d 565 (2009), the Saucier analysis is no longer mandatory, but remains instructive. ("We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established, at the time of the search that their conduct was unconstitutional.") [

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7 Defendants also allege that Office Ravich told plaintiffs to line up against a fence and they 1 failed to comply. However, this fact is disputed, and, therefore, cannot be used to support summary judgment in their favor.

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N.Y.2d 98, 101, 365 N.E.2d 872 (1977), found that "[a) fair reading of [the OGA statute] can

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yield but one conclusion. The operative obstruction may be accomplished 'by means of intimidation, physical force or interference, or by means of any independently unlawful act.' If it

be 'interference', then it must be physical interference, as 'physical' modifies 'interference' in\ the statute." See also Jackson, 2013 WL 1621994, at *6; In re Armeli N., 28 Misc.3d at 534;

 

Case, 42 N.Y.2d at 100-01, 396 N.Y.S.2d 841, 365 N.E.2d at 872. Especially on summary judgment, defendants' insistent reliance on a few exceptions is unavailing. Further, defendants cannot be heard to argue that they were unaware of this understanding of the law, as NYPD's own Patrol Guide makes clear that "Speech alone," "Taking photographs, videotapes or tape recordings," or "Remaining in the vicinity of the stop: or arrest" are not grounds for arrest for OGA. NYPD Patrol Guide § 208-03, Glickman Deel., EJ

 

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A.

Speculation that the recording light could "be used for purposes of helping L.B. escape or I

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resist, to aid the other members of the group to assist L.B. in escaping, or to draw more attention to the officer and L.B. in order to bring a crowd to the location," does not alter the result. See :

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Def. Reply at 7. The same is true for defendants' argument that plaintiffs' conduct "go[ es] :

beyond" the enumerated categories because the officer "could reasonably believe that the

conduct endangered" him or others. Defs. Reply at 8.

 
   

This is, of course, not to say that, at trial, defendants could not offer evidence that they were blinded by the shining light or otherwise feared they were in jeopardy. But a successful I defense requires more than the speculation offered on this motion. There is simply no basis for a finding at the summary judgment stage of objective reasonableness that plaintiffs were in I

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violation of any law or in any way endangering an officer or anyone else. In any event, given the account of events provided by plaintiffs, there is, at best for defendants, genuine disputes about

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material fact, which preclude summary judgment on this claim.

  • C. Default of State Law Claims

Finally, defendants seeks to dismiss all of plaintiffs' state law claims because, they

contend, plaintiffs failed to appear for required hearings that are conditions precedent to suit.

When suing the City or its employees, a notice of claim is required, pursuant to New York

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General Municipal Law§ 50-e(l)(b). Plaintiffs must file a notice of claim within 90 days of~e

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incident giving rise to the claim, and commence the action within a year and ninety days. The I

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statute also requires plaintiffs to, upon demand, sit for an examination as to the bonajides oft:I?-e

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claim. N.Y. Gen. Mun. L. § 50-e(l)(b) and 50-i. There is no dispute that plaintiffs properly filed

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their notices of claim. Defendants contend, however, that hearing notices were sent to plaintiffs'

counsel and that plaintiffs never appeared for their hearings. Plaintiffs, without proffering swdrn

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testimony, argue that defendants chose not to inquire on this point at depositions and have no

evidence that the notices were received or that plaintiffs failed to appear. In response, the Cityj

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supplied an affidavit on the routine practice as to 50-h hearings, indicating that the notices would

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have been sent and declared that a search of the records reflects no adjournments or appearances.

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Bodner Deel. at ~~ 10-16.

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New York courts have strictly construed at least some notice of claim requirements and

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"[f]ailure to comply with these requirements ordinarily requires dismissal for failure to state a

cause of action." Hardy v. N. Y. City Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir.

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1999). However, the cases cited by defendants largely involve failure to file a notice of claim at

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all, and do not reach the question of whether defaulting on a hearing is sufficient to defeat

pendant state law claims brought against a municipality and its employees. See Friel v. Cty. ofil·

Nassau, 947 F. Supp. 2d 239, 247 (E.D.N.Y. 2013); Guerrero v. City of New York, No. 12-CV 1

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/s/ USDJ ERIC N. VITALIANO