JORGE v. CITY OF NEW YORK (2023)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about April 29, 2021, which, to the extent appealed from, granted defendants’ motion to dismiss the claims for assault, battery, use of excessive force, civil rights violations, and negligent hiring and retention, and to compel plaintiff to produce discovery, unanimously affirmed, without costs.

The court correctly dismissed the state law claims for assault and battery as time-barred (CPLR 3211[a][5]).  Plaintiff had one year and 90 days from the assault, which occurred at the time of his arrest on October 30, 2007, to file the claims, but he did not commence this action until January 13, 2012, well after the statute of limitations expired (see CPLR 217–a;  General Municipal Law § 50–i[1][c];  Grullon v. City of New York, 222 A.D.2d 257, 258, 635 N.Y.S.2d 24 [1st Dept. 1995]).  Plaintiff's federal claim for excessive force in violation of 42 USC § 1983 was similarly untimely, since he failed to commence the action within three years of his arrest (see Higgins v. City of New York, 144 A.D.3d 511, 512, 43 N.Y.S.3d 1 [1st Dept. 2016]).  The continuing wrong doctrine did not apply to toll the limitations periods because plaintiff alleged one tortious act, and the continuing consequences of that act did not amount to distinct wrongs (see Henry v. Bank of Am., 147 A.D.3d 599, 601, 48 N.Y.S.3d 67 [1st Dept. 2017]).

Plaintiff failed to state a Monell claim (Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978]), as he did not allege facts showing that an official policy or custom caused the arresting officers to deprive him of his constitutional rights (CPLR 3211[a][7];  see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 768, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016];  Graham v. City of New York, 279 A.D.2d 435, 436, 720 N.Y.S.2d 452 [1st Dept. 2001]).  The generalized allegations in the complaint that law enforcement mistreated members of minority groups were insufficient, and the articles submitted by plaintiff did not address any specific policy that resulted in the deprivation of his rights (see Sifonte v. City of New York, 194 A.D.3d 435, 436, 143 N.Y.S.3d 212 [1st Dept. 2021];  Pang Hung Leung v. City of New York, 216 A.D.2d 10, 11, 627 N.Y.S.2d 369 [1st Dept. 1995]).

Because the officers were acting within the scope of their employment, the negligent hiring and retention claims were also correctly dismissed (Troy v. City of New York, 160 A.D.3d 410, 411, 70 N.Y.S.3d 842 [1st Dept. 2018];  Thompson v. City of New York, 159 A.D.3d 654, 654, 70 N.Y.S.3d 830 [1st Dept. 2018]).

The court providently exercised its discretion in granting defendants’ motion to compel discovery (CPLR 3124).  Contrary to plaintiff's contention, defendants adequately demonstrated in their affirmation of good faith the efforts that they had undertaken to obtain the requested information, which plaintiff failed to produce for years despite multiple court orders, prior to making the motion (Uniform Rules for Trial Cts [22 NYCRR] § 202.7[c];  see also Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1st Dept. 1999]).

We have considered plaintiff's remaining arguments and find them unavailing.