| Eckardt v City of White Plains |
| 2011 NY Slip Op 06548 [87 AD3d 1049] |
| September 20, 2011 |
| Appellate Division, Second Department |
| Dean Eckardt, Respondent, v City of White Plains et al.,Appellants, et al., Defendants. |
—[*1] Laub Delaney LLP, White Plains, N.Y. (Montgomery Delaney of counsel), forrespondent.
In an action to recover damages for assault and battery, intentional infliction of emotionaldistress, negligent hiring and supervision, and for civil rights violations pursuant to 42 USC§ 1983, the defendants City of White Plains, White Plains Police Department, and PoliceOfficer Aragon No. 64 appeal, as limited by their notice of appeal and brief, from so much of anorder of the Supreme Court, Westchester County (Liebowitz, J.), entered July 19, 2010, as, uponremoving the White Plains Police Department as a defendant in the action, denied those branchesof their motion which were for summary judgment dismissing the complaint insofar as assertedagainst the defendants City of White Plains and Police Officer Aragon No. 64.
Ordered that the appeal by the defendant White Plains Police Department is dismissed,without costs or disbursements, as it is not aggrieved by the order appealed from (seeCPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion of the defendants City of White Plains, the White Plains PoliceDepartment, and Police Officer Aragon No. 64 which were for summary judgment dismissing thesecond, third, and fourth causes of action insofar as asserted against the defendant City of WhitePlains and the third cause of action insofar as asserted against the defendant Police OfficerAragon No. 64, and substituting therefor provisions granting those branches of the motion; as somodified, the order is affirmed insofar as appealed from by the defendants City of White Plainsand Police Officer Aragon No. 64, without costs or disbursements.
The plaintiff was arrested for disorderly conduct and resisting arrest. He alleged that, after hewas brought to police headquarters, one of the arresting police officers unnecessarily used a taseron him several times while he was handcuffed. The officer testified at his deposition that he onlyused a taser on the plaintiff once because the plaintiff continually attempted to assault officersinside police headquarters. According to the officer, the plaintiff was not handcuffed at the time.[*2]
The plaintiff commenced this action against the defendantCity of White Plains, the White Plains Police Department, and several police officers, includingthe defendant Police Officer Aragon No. 64 (hereinafter Officer Aragon), asserting causes ofaction to recover damages for assault and battery (the first cause of action), intentional inflictionof emotional distress (the second cause of action), negligent hiring and supervision (the thirdcause of action), and civil rights violations pursuant to 42 USC § 1983 (the fourth cause ofaction). The City, the White Plains Police Department, and Officer Aragon moved for summaryjudgment dismissing the complaint insofar as asserted against them. The Supreme Court, interalia, denied those branches of the motion which were for summary judgment dismissing thecomplaint insofar as asserted against the City and Officer Aragon (hereinafter together theappellants). We modify.
The appellants failed to make a prima facie showing of their entitlement to judgment as amatter of law dismissing the first cause of action insofar as asserted against them. We note that,unlike a claim pursuant to 42 USC § 1983, a municipality may be vicariously liable on astate law assault and battery claim for torts committed by a police officer under a theory ofrespondeat superior (see Williams v City of White Plains, 718 F Supp 2d 374, 381[2010]; see also Merritt v Village of Mamaroneck, 233 AD2d 303, 304 [1996]).
The appellants did, however, establish the City's entitlement to summary judgmentdismissing the second cause of action insofar as asserted against it, as " '[p]ublic policy barsclaims for intentional infliction of emotional distress against a governmental entity' " (Ellison v City of New Rochelle, 62AD3d 830, 833 [2009], quoting Liranzo v New York City Health & Hosps. Corp.,300 AD2d 548 [2002]). The appellants failed to make a prima facie showing of Officer Aragon'sentitlement to summary judgment dismissing this cause of action insofar as asserted against him.
With regard to the third cause of action asserted under New York common law, generally, anemployer will be held liable for torts committed by an employee who is acting within the scopeof his or her employment under a theory of respondeat superior, and "no claim may proceedagainst the employer for negligent hiring, retention, supervision or training" (Talavera v Arbit, 18 AD3d 738,738 [2005]; see Karoon v New York City Tr. Auth., 241 AD2d 323 [1997]). Here, theactions complained of occurred during the arrest and detention of the plaintiff by several policeofficers, including Officer Aragon. It is beyond dispute that these actions were performed by theofficers in the scope of their employment with the City. Accordingly, the plaintiff may notproperly proceed with a cause of action to recover damages for negligent hiring and supervision,and the Supreme Court should have granted those branches of the motion which were forsummary judgment dismissing the third cause of action insofar as asserted against the appellants.Contrary to the plaintiff's contention, the exception to this general rule (see generally Karoonv New York City Tr. Auth., 241 AD2d 323 [1997]) is inapplicable to the circumstances ofthis case based on the record before the Supreme Court.
As for the fourth cause of action, "42 USC § 1983 provides that '[e]very person who,under color of any statute, ordinance, regulation, custom, or usage . . . subjects, orcauses to be subjected, any citizen of the United States . . . to the deprivation of anyrights, privileges, or immunities secured by the Constitution and laws, shall be liable to the partyinjured' " (Hudson Val. Mar., Inc. vTown of Cortlandt, 79 AD3d 700, 703 [2010]). "A municipality is not liable under 42USC § 1983 for an injury inflicted solely by its employees or agents" (id. at 703;see Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978]). Amunicipality "cannot be held liable pursuant to 42 USC § 1983 based solely upon thedoctrine of respondeat superior or vicarious liability" (Lopez v Shaughnessy, 260 AD2d551, 552 [1999]; see Canton v Harris, 489 US 378 [1989]; Jackson v Police Dept. ofCity of N.Y., 192 AD2d 641, 642 [1993], cert denied 511 US 1004 [1994])."However, '[a] 42 USC § 1983 action may lie against a municipality if the plaintiff showsthat the action that is alleged to be unconstitutional either implement[s] or execute[s] a policystatement, ordinance, regulation, or decision officially adopted and promulgated by that body'sofficers or has occurred pursuant to a practice so permanent and well settled as to constitute acustom or usage with the force of law' " (Hudson Val. Mar., Inc. v Town of Cortlandt, 79AD3d at 703, quoting Maio vKralik, 70 AD3d 1, 10-11 [2009] [internal quotation marks and citations omitted]; see Bassett v City of Rye, 69 AD3d667, 668 [2010]). Where, as here, a [*3]plaintiff "seeks toestablish 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 arelevant respect evidences a deliberate indifference to the rights of its inhabitants" (Jackson vPolice Dept. of City of N.Y., 192 AD2d at 642; see Canton v Harris, 489 US at389-390). "To sustain a claim based upon inadequate training, a plaintiff must demonstrate notonly that there is a deficiency in the actor's training, but also that the deficiency identified is'closely related to the ultimate injury' " (Mays v City of Middletown, 70 AD3d 900, 903 [2010], quotingCanton v Harris, 489 US at 391).
Here, the appellants established the City's prima facie entitlement to judgment as a matter oflaw on the fourth cause of action insofar as asserted against it. The appellants made a prima facieshowing that the police officers were adequately trained by the City with regard to the use oftasers (see Mays v City ofMiddletown, 70 AD3d 900 [2010]). In opposition, the plaintiff failed to raise a triableissue of fact. However, the Supreme Court properly denied that branch of the motion which wasfor summary judgment dismissing the fourth cause of action insofar as asserted against OfficerAragon. "Claims that law enforcement personnel used excessive force in the course of an arrestare analyzed under the Fourth Amendment and its standard of objective reasonableness" (Moore v City of New York, 68 AD3d946, 947 [2009]; see Graham v Connor, 490 US 386, 394-395 [1989]). "Thereasonableness of an officer's use of force must be 'judged from the perspective of a reasonableofficer on the scene, rather than with the 20/20 vision of hindsight' " (Rivera v City of New York, 40 AD3d334, 341 [2007], quoting Graham v Connor, 490 US at 396). Here, the appellantsfailed to satisfy their prima facie burden of eliminating all triable issues of fact as to whetherOfficer Aragon's use of force was objectively reasonable under the circumstances.
The parties' remaining contentions are without merit. Dillon, J.P., Angiolillo, Dickerson andCohen, JJ., concur.