F.D., Plaintiff, v. NASSAU COUNTY SHERIFF DEPARTMENT (2023)

The following papers were read on this motion:

Defendants’ Notice of Motion for Summary Judgment and Supporting Papers X

Plaintiff's Affirmation in Opposition to Defendants’ Motion X

Defendants’ Memorandum of Law in Reply X

Upon the foregoing e-filed documents, the motion of the defendants, INCORPORATED VILLAGE OF FREEPORT, FREEPORT POLICE DEPARTMENT and FREEPORT VILLAGE POLICE OFFICERS “JOHN DOES 1-5” (hereinafter referred to collectively as “Village Defendants”) for an Order pursuant to CPLR 3212 granting summary judgment in their favor and against the plaintiff, F.D. [“plaintiff”], and dismissing the plaintiff's Complaint as against the Village Defendants, and dismissing any cross-claims asserted against the Village Defendants, is determined as set forth hereinafter:

The plaintiff commenced this action by the filing of a summons and verified complaint on October 13, 2020 against the Nassau County Sheriff's Department, Nassau County Deputy Sheriffs “John Does 1-5”, the County of Nassau (hereinafter referred to collectively as “County Defendants”) and the Village Defendants.

It is alleged in the plaintiff's Complaint that on December 30, 2019, at approximately 8:09 PM, the plaintiff was allegedly physically assaulted by the County Defendants while she was inside her home, located in the County of Nassau, State of New York. She alleges that she called 911 for assistance, and that in response to her call, the Village Defendants arrived at her home and instructed the County Defendants to leave the plaintiff's home, despite the plaintiff's request for the arrest of the County Defendants. Thereafter, both the County Defendants and Village Defendants left the plaintiff's home.

The plaintiff further alleges that she subsequently called 911 numerous times to request an ambulance and further assistance. The Village Defendants then returned to plaintiff's home with an ambulance ¹ and the plaintiff was then transported to South Nassau Communities Hospital for treatment. After being discharged from the hospital, the plaintiff went to the Freeport police precinct to file an incident report against the County Defendants. She alleges that the officers at the precinct did not want to help her file a report against County Defendants, and that the Village Defendants only assisted the plaintiff once she informed them that she possessed a video recording of the assault.

Freeport Police Officer D.C. (“Officer C.”) assisted the plaintiff in the preparation of the report. The plaintiff alleges that Officer C. drafted approximately four (4) drafts before the plaintiff signed the report as an accurate recollection of the alleged assault. The plaintiff believed that Officer C. intentionally drafted incorrect reports to protect the County Defendants. The next day, the plaintiff returned to the Freeport precinct to obtain a copy of the report, and was told by the Village Defendants that no report existed. She alleges that the Village Defendants did not locate her statement/report until after she informed them that she had a photo of the report. As a result of the Village Defendants’ conduct, the plaintiff filed the instant action.

The plaintiff's Complaint initially consisted of nine (9) causes of action, seven (7) of which were asserted against the Village Defendants. By Short Form Order dated July 8, 2021 [NYSCEF Doc. No. 30], the sixth, eighth, and ninth causes of action were dismissed against the Village Defendants. The plaintiff's first, fourth, fifth, and seventh causes of action, which are the subject of this motion, remained. On August 3, 2021, the Village Defendants filed an Answer.

The plaintiff's remaining causes of action against the Village Defendants are as follows: first cause of action, that the Village Defendants’ actions violated the plaintiff's civil rights and caused her physical injuries, psychological injuries, and emotional distress; fourth cause of action, that acting under color of State Law, the Village Defendants denied the plaintiff's due process rights secured under the Fourteenth Amendment to the U.S. Constitution, and violated the Civil Rights Act of 1781, 42 U.S.C. § 1983 and the Bivens Law; fifth cause of action, that the Village Defendants’ acts were of such wanton, willful, egregious, reckless and intentional character so as to manifest and evince a callous and reckless disregard for the safety of others, including the plaintiff; and seventh cause of action, that the Village Defendants approved, ratified and adopted the acts of their employees, that they negligently and carelessly failed to adequately hire, train and supervise their employees, and that such actions violated the plaintiff's rights under the Fourth and Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1983 and Article 1, § 12 of the New York Constitution.

The Village Defendants now move for an Order pursuant to CPLR 3212 for summary judgment against the plaintiff on the remaining causes of action, an Order dismissing the remaining causes of action in the plaintiff's Complaint as asserted against the Village Defendants, and an Order dismissing any cross-claims against Village Defendants. The plaintiff submits opposition to the Village Defendants’ motion.

In support of their motion, the Village Defendants submit, inter alia, the Village Defendants answer dated August 3, 2021; a copy of the transcript of the plaintiff's 50-h hearing before the County Defendants dated March 13, 2022; a copy of the transcript of the plaintiff's 50-h hearing before the Village Defendants dated July 20, 2021 and August 24, 2021; a copy of the transcript from the plaintiff's deposition dated March 22, 2022; a copy of the transcript of Nassau County Deputy Sheriff S. M. appearing on behalf of the County Defendants’ deposition dated April 20, 2022; a copy of the transcript of Officer C. appearing on behalf of the Village Defendants’ deposition dated April 25, 2022; a copy of the transcript of Nassau County Deputy Sheriff F.B. appearing on behalf of the County Defendants’ deposition dated August 9, 2022; a copy of the Freeport Police Department Case Report dated December 30, 2019; a copy of the Nassau County Sheriff's Department Internal Affairs Unit Case Narrative dated October 22, 2021; and a copy of the Nassau County Sheriff's Department Internal Affairs Unit History of Events dated December 31, 2019.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ․ Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” (Alvarez v Prospect Hosp., 508 NYS2d 923 [1986] [internal citations omitted]).

“Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. (See Zuckerman v New York, 49 NY2d 557 [1980]). “[O]nly the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations suffices to defeat summary judgment”. (Gennis v Pomona Park Bd. of Managers, 36 AD3d 661, 663 [2d Dept 2007], quoting Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223 [1978]).

The plaintiff's first, fourth, and seventh causes of action essentially assert substantive due process claims pursuant to 42 USC § 1983 against the Village Defendants.

In Jackson v. Police Dep't of City of New York, 192 AD2d 641, 642 [2d Dept 1993], the Second Department held as follows with respect to claims for deprivation of constitutional rights brought against a municipality:

“A municipality can be found liable under 42 USC § 1983 for deprivation of constitutional rights only where the municipality itself causes the constitutional violation at issue. It cannot be held liable pursuant to 42 USC § 1983 based solely upon the doctrine of respondeat superior or vicarious liability. To prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality, the plaintiff must specifically plead and prove (1) an official policy or custom that (2) causes the claimant to be subjected to (3) a denial of a constitutional right. Where the plaintiff seeks to establish that the municipality is liable by virtue of the inadequate training of its police officers, the plaintiff must plead and prove that the municipality's failure to train its police officers in a relevant respect evidences a deliberate indifference to the rights of its inhabitants” (Jackson, 192 AD2d at 642 [internal citations omitted]).

In order to establish a substantive due process violation a plaintiff must demonstrate that the government action was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience”. (Pena v. Deprisco, 432 F. 3d 98, 112 [2nd Cir. 2005] (citing County of Sacramento v. Lewis, 523 US 833, 847 n.8 [1998]). Moreover, not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequential damages that the plaintiff sustained. (Oliveras v Saranac Lake Cent. Sch. Dist., 2014 WL 1311811 [NDNY 2014]); see also Johnson v. Kings County Dist. Attorney's Off., 308 AD2d 278, 290 [2d Dept 2003]).

The Village Defendants argue that that plaintiff fails to allege any conduct on the part of the Village Defendants that violated her due process rights. They argue that the plaintiff has failed to set forth any facts which connect the Village Defendants with conduct that deprived the plaintiff of any of her civil rights. They further contend that the plaintiff has failed to raise any allegation that the defendant Incorporated Village of Freeport had a custom or policy that was implemented and resulted in the violation of the plaintiff's due process rights.

The Village Defendants argue that, despite the plaintiff's allegation that the Village Defendants failed to act after the alleged assault, the Village Defendants responded to the plaintiff's 911 call, instructed the County Defendants to leave, returned to the plaintiff's home with an ambulance, and assisted the plaintiff in filing a report against the County Defendants. The Village Defendants also contend that they cannot be held liable for actions committed by their employees which are deemed unconstitutional. They further argue that while the Freeport Police Department's investigation into this incident did not lead to the Freeport Police Department making any arrests, the plaintiff does not have a constitutional right to have an individual arrested by the police upon her request for same. The Village Defendants argue that summary judgment should be granted in the Village Defendants’ favor because the plaintiff has failed to raise a genuine issue of fact for trial.

The plaintiff argues in opposition that the Village Defendants have not presented sufficient evidence to eliminate all triable issues of fact. She contends that the Village Defendants fail to address her allegations that the Village Defendants failed to arrest County Defendants for the alleged assault, that the Village Defendants attempted to “cover up” the incident by persuading the plaintiff to not file a report, that the Village Defendants attempted to change the facts of the incident while preparing the plaintiff's report, and that the Village Defendants denied that a report existed when the plaintiff returned to the precinct. The plaintiff further contends that the Village Defendants’ alleged conduct of protecting the County Defendants was egregious, outrageous, and “shocks the contemporary conscience”. The plaintiff argues that she suffered “mental injuries” as result of the Village Defendants’ conduct.

In this case, the Court finds that the Village Defendants have established their prima facie entitlement to judgment as a matter of law and the plaintiff has failed to raise any genuine triable issues of fact in opposition thereto. The plaintiff has failed to put forth any evidence of a policy or custom adopted by the Village Defendants which is claimed to be unconstitutional. In fact, she fails to specifically allege the existence of such a policy or custom in her complaint. (See Combs v. City of New York, 130 AD3d 862, 865 [2d Dept 2015]). She likewise fails to put forth any evidence specifically connecting any of the Village Defendants to an alleged deprivation of any of her constitutional rights.

Her assertion that the Village Defendants’ acts were intended to “cover up” the alleged assault by the County Defendants are mere conclusory allegations unsupported by documentary evidence or specific facts. She also fails to allege or prove a lack of training by the Village Defendants which reflects a deliberate indifference to the plaintiff's constitutional rights. (See Fludd v. City of New York, 199 AD3d 894, 897 [2d Dept 2021] [citation omitted]). The Court further finds that the plaintiff has failed to show that the Village Defendants’ conduct was egregious, outrageous, and/or that it “shock[ed] the conscience”, and she fails to prove her “mental injuries” were caused by the acts of the Village Defendants. As the plaintiff has failed to raise a triable issue of fact in opposition to the Village Defendants’ prima facie showing, the portion of the Village Defendants’ motion which seeks dismissal of the plaintiff's first, fourth, and seventh causes of action shall be GRANTED and those causes of action shall be severed and dismissed as asserted against the Village Defendants.

The Village Defendants also seek dismissal of the plaintiff's fifth cause of action alleging that the actions of the Village Defendants were of such wanton, willful, egregious, reckless and intentional character so as to manifest and evince a callous and reckless disregard for the safety of others, including the plaintiff. The substance of the plaintiff's fifth cause of action is a negligence claim asserted against the Village Defendants.

“To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury”. (Smith v. Dutchess Motor Lodge, 213 AD3d 881, 881 [2d Dept 2023], quoting Lynfatt v Escobar, 71AD3d 743, 744 [2d Dept 2010]). A plaintiff pursuing a negligence cause of action must first prove that the defendant owed a duty of care. “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created”. (Valdez v City of New York, 936 NYS2d 587 [2011]).

For a special duty to exist, the plaintiff must first prove there was a special relationship by establishing the following elements:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.” (Valdez, 936 NYS2d at 596 [citation omitted]).

A plaintiff must satisfy each of the above factors in order to establish a special relationship. (See Valdez, 936 NYS2d at 596; Philip v. Moran, 127 AD3d 717, 718 [2d Dept 2015]).

The Village Defendants argue that they owed no duty of care to the plaintiff as no special relationship existed between the plaintiff and the Village Defendants. The Village Defendants contend that they did not make any promises, take any actions, or imply that they were assuming an affirmative duty on the plaintiff's behalf. They argue that therefore the plaintiff fails to meet the first prong of the “special relationship” test and has also failed to demonstrate that a triable issue of fact exists with respect thereto.

The plaintiff argues in opposition thereto that the Village Defendants owed a special duty to the plaintiff and that the Village Defendants have failed to establish an entitlement to summary judgment. The plaintiff further contends that she “has established a cause of action for intentional infliction of emotional distress in that Village Defendants committed extreme and outrageous conduct” (Plaintiff's Affirmation in Opposition p. 17, ¶ 39). The Court notes, however, that the plaintiff's complaint fails to allege the tort of intentional infliction of emotional distress and that the plaintiff only refers to such a cause of action in her motion opposition papers. In any event, public policy bars claims for intentional infliction of emotional distress against a governmental entity, so any such claim of action would be dismissed as a matter of law. (Ellison v. City of New Rochelle, 62 AD3d 830, 833 [2d Dept 2009] [citations omitted]).

The Court finds that the Village Defendants have made a prima facie showing of entitlement to judgment as a matter of law with respect to the plaintiff's fifth cause of action, by establishing that the plaintiff has failed to show that a special duty was created. The plaintiff has failed to raise a triable issue of fact in opposition to the Village Defendants’ prima facie showing. Therefore, the portion of the Village Defendants’ motion which seeks summary judgment on the plaintiff's fifth cause of action shall be GRANTED and that cause of action shall be severed and dismissed as asserted against the Village Defendants.

The portion of the Village Defendants’ motion which seeks summary judgment dismissal of any cross-claims asserted against them is unopposed. Therefore, that portion of the Village Defendants’ motion shall be GRANTED, and any cross-claims asserted against the Village Defendants by the County Defendants shall be severed and dismissed.

Accordingly, it is hereby,

ORDERED, that the Village Defendants’ motion for an Order pursuant to CPLR 3212 granting them summary judgment in their favor and against the plaintiff, dismissing the causes of action asserted by the plaintiff against them, and dismissing any cross-claims asserted against them by the County Defendants, is GRANTED, in its entirety; and it is further,

ORDERED, that judgment shall be entered in favor of the Village Defendants; and it is further,

ORDERED, that the remaining causes of action in the plaintiff's Complaint which are asserted against the Village Defendants, and any cross-claims asserted against the Village Defendants, are hereby severed and dismissed as against the Village Defendants.

This constitutes the Decision and Order of this Court.

FOOTNOTES

1.   Plaintiff's Complaint alleges that the Village Defendants failed to investigate or report her assault claim when they arrived with the ambulance.

Conrad D. Singer, J.