BROOKS v. CITY OF BUFFALO (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this personal injury action against the City of Buffalo (City) and then-unidentified City of Buffalo Police Officer John Doe (collectively, defendants), based on plaintiff's allegations that the officer injured him and violated his constitutional rights during an unlawful stop and frisk. After limited discovery, plaintiff moved to amend the complaint to add two named police officers and the City of Buffalo Police Commissioner (Commissioner) as defendants, and to add a cause of action based on 42 USC § 1983 against the Commissioner and the City. Defendants appeal from an order insofar as it granted the motion with respect to the Commissioner and the new cause of action. We affirm.

It is well settled that, “[a]lthough leave to amend a pleading should be freely granted (see CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit” (Matter of DeCarr v. Zoning Bd. of Appeals for Town of Verona, 154 A.D.3d 1311, 1314, 62 N.Y.S.3d 244 [4th Dept. 2017] [internal quotation marks omitted]; see Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015]; Landco H & L, Inc. v. 377 Main Realty, Inc., 203 A.D.3d 1601, 1602-1603, 165 N.Y.S.3d 197 [4th Dept. 2022]). Additionally, it is equally well settled that “the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court” (Pink v. Ricci, 100 A.D.3d 1446, 1448, 954 N.Y.S.2d 306 [4th Dept. 2012] [internal quotation marks omitted]; see Christian v. Brookdale Senior Living Communities, Inc., 199 A.D.3d 1450, 1451, 154 N.Y.S.3d 616 [4th Dept. 2021]; Duszynski v. Allstate Ins. Co., 107 A.D.3d 1448, 1449, 967 N.Y.S.2d 796 [4th Dept. 2013]).

The proposed amended complaint alleges, insofar as relevant here, a violation of 42 USC § 1983, which “impose[s] liability ․ for conduct which subjects, or causes to be subjected the complainant to a deprivation of a right secured by the Constitution and laws” (Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 46 L.Ed.2d 561 [1976] [internal quotation marks omitted]). “[A] plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of (1) an official policy or custom [on the part of a municipal defendant] that (2) caused the claimant to be subjected to (3) a denial of a constitutional right ․ For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement or execute a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers ․, or have occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law” (Bassett v. City of Rye, 104 A.D.3d 889, 890-891, 961 N.Y.S.2d 561 [2d Dept. 2013] [internal quotation marks and brackets omitted]; see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 762, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016]; Pendleton v. City of New York, 44 A.D.3d 733, 736-737, 843 N.Y.S.2d 648 [2d Dept. 2007]). The proposed amended complaint alleges the existence of an extraconstitutional municipal “stop and frisk” policy, that the police officers unlawfully searched and allegedly injured plaintiff pursuant to that policy, and that the Commissioner unofficially authorized or exhibited deliberate indifference to that policy and determined that the actions that violated plaintiff's rights were appropriate. Therefore, we conclude that the proposed amended complaint states a cause of action under 42 USC § 1983 against the City (see Smith v. City of New York, 170 A.D.3d 499, 500, 94 N.Y.S.3d 290 [1st Dept. 2019]; see generally Matusick v. Erie County Water Auth., 757 F.3d 31, 62-63 [2d Cir. 2014]) and against the Commissioner (see generally Hafer v. Melo, 502 U.S. 21, 25-31, 112 S.Ct. 358, 116 L.Ed.2d 301 [1991]). Consequently, defendants failed to show that the proposed amended complaint was palpably insufficient or patently without merit and thus Supreme Court did not abuse its discretion in granting the motion.

It is well settled that contentions that are raised for the first time in a reply brief are not properly before us (see Northwoods, L.L.C. v. Hale, 201 A.D.3d 1357, 1358, 158 N.Y.S.3d 701 [4th Dept. 2022]; Scheer v. Elam Sand & Gravel Corp., 177 A.D.3d 1290, 1292, 112 N.Y.S.3d 397 [4th Dept. 2019]; Turner v. Canale, 15 A.D.3d 960, 961, 790 N.Y.S.2d 347 [4th Dept. 2005], lv denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189 [2005]). Consequently, we do not consider defendants’ contentions that the motion should have been denied because the officers had reasonable suspicion to conduct a pat-down search of plaintiff to ensure officer safety, and that the allegations in the proposed amended complaint exceeded those in plaintiff's citizen complaint to the Buffalo Police Department. Finally, we have reviewed defendants’ remaining contentions and conclude that they are without merit.