Ronessa H. (Anonymous), appellant-respondent, v. City of New York, et al., respondents-appellants, et al., defendant.

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Supreme Court, Appellate Division, Second Department, New York.

Ronessa H. (Anonymous), appellant-respondent, v. City of New York, et al., respondents-appellants, et al., defendant.

2011–00317 (Index No. 18929/06)

Decided: December 19, 2012

PETER B. SKELOS, J.P. RUTH C. BALKIN JOHN M. LEVENTHAL LEONARD B. AUSTIN, JJ. Burns & Harris, New York, N.Y. (Blake G. Goldfarb of counsel), for appellant—respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for respondents-appellants.

Argued—April 9, 2012

DECISION & ORDER

In an action, inter alia, to recover damages for violations of civil rights pursuant to 42 USC § 1983, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated November 16, 2010, as, after a jury verdict finding the defendant City of New York 50% at fault in the happening of the incident, the defendant Andrew C. Johnson 30% at fault, and the defendant Donald Nelson 20% at fault, and awarding damages in the sums of $650,000 for past pain and suffering and $90,000 for future pain and suffering, and awarding punitive damages against the defendant Donald Nelson in the sum of $175,000, granted that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial on the issue of liability and damages as against them, and thereupon directed a new trial on the issues of liability and damages, and the defendants City of New York and Donald Nelson cross-appeal, as limited by their brief, from so much of the same order as, in effect, denied that branch of their motion which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against them for failure to establish a prima facie case.

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against those defendants for failure to establish a prima facie case is granted, that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial as to those defendants is denied as academic, and so much of the order as directed a new trial on the issues of liability and damages as to the defendants City of New York and Donald Nelson is vacated;  and it is further,

ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings on the complaint insofar as asserted against the defendant Andrew C. Johnson;  and it is further,

ORDERED that one bill of costs is awarded to the defendants City of New York and Donald Nelson.

The plaintiff commenced this action alleging that she was sexually assaulted in her home by the defendant Andrew C. Johnson, a New York City police officer.   With respect to the plaintiff's causes of action against the defendant City of New York that were based on the alleged conduct of Johnson, who defaulted in this action, the Supreme Court charged the jury on negligent employment, training, and supervision (see PJI 2:240).   As to the plaintiff's claim that the defendant police officer Donald Nelson violated her civil rights by failing to protect her from the assault by Johnson, the court charged the jury on 42 USC § 1983 and the deprivation of the right to be free of cruel and unusual punishment (see PJI 3:60, 3:60.4).

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” (Ryan v. City of New York, 84 AD3d 926, 926–927 [internal quotation marks omitted];  see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499).  “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Jourbine v. Ma Yuk Fu, 67 AD3d 865, 866 [internal quotation marks omitted] ).

A necessary element of a cause of action alleging negligent retention or negligent supervision is that the “employer knew or should have known of the employee's propensity for the conduct which caused the injury” (Bumpus v. New York City Tr. Auth., 47 AD3d 653, 654 [internal quotation marks omitted] ).

Here, although the plaintiff presented testimony that Johnson had been reprimanded for failing to report a lost prisoner, that is not conduct that would reasonably put the City on notice that Johnson was inclined toward conduct such as that which allegedly caused the plaintiff's injuries (see Dennard v. Small World Ctr., Inc., 29 AD3d 730;  Kelly v. City of New York, 16 AD3d 463;  Oliva v. City of New York, 297 A.D.2d 789;  Ray v. Metropolitan Transp.   Auth., 221 A.D.2d 613, cert denied sub nom.  Ray v. Willett, 519 U.S. 822;  cf.  Fenstermacher v. Nevins Amusements, 273 A.D.2d 347).   Nor did the plaintiff establish that a special duty was owed to her by the City (see Valdez v. City of New York, 18 NY3d 69, 80).   Accordingly, the Supreme Court should have granted that branch of the motion of the City and Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against the City (see Ray v. Metropolitan Transp.   Auth., 221 A.D.2d at 614).

As to the plaintiff's 42 USC § 1983 claim arising out of Nelson's alleged deprivation of her rights under the Eighth Amendment by failing to protect her from Johnson, the plaintiff was not in police custody at the time of the alleged sexual assault (cf.  DeShaney v Winnebago County Dept. of Social Servs., 489 U.S. 189;  Clarke v. Sweeney, 312 F Supp 2d 277, 296).   Moreover, the evidence was legally insufficient to establish that Nelson was “deliberately indifferent to an unjustifiably substantial risk of serious harm of which [he was] aware, or that the risk was so obvious that it should have been known to [him]” (Fausto v. City of New York, 17 AD3d 520, 522;  see Farmer v. Brennan, 511 U.S. 825;  see also Galapo v. City of New York, 95 N.Y.2d 568, 575;  Carroll v. City of New York, 287 A.D.2d 430, 431;  Malenczak v. City of New York, 265 A.D.2d 532, 533).   Thus, the Supreme Court should have granted that branch of the motion of the City and Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against Nelson.

The plaintiff's remaining contentions either are without merit or, having not been raised before the Supreme Court, are not properly before this Court.

In light of the facts that the complaint must be dismissed insofar as asserted against the City and Nelson and that the Supreme Court has granted the plaintiff a default judgment against Johnson, based on his failure to answer or appear in this action, we remit the matter to the Supreme Court, Kings County, for further proceedings on the complaint insofar as asserted against Johnson.

SKELOS, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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