| Elie v City of New York |
| 2012 NY Slip Op 01207 [92 AD3d 716] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Evens Elie et al., Respondents, v City of New York et al.,Appellants, et al., Defendants. |
—[*1] Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), forrespondents.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, etc., thedefendants City of New York, Anthony Cheatham, Thomas Fitzgerald, and Darrell Grant appealfrom so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated November9, 2010, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) todismiss the sixth cause of action to recover damages for civil rights violations pursuant to 42USC § 1983 insofar as asserted against the City of New York, or, in the alternative, tobifurcate and stay discovery and trial on the sixth cause of action pending resolution of the otherclaims, and denied that branch of their separate motion which was to compel the plaintiffs toanswer certain questions at their depositions relevant to the prior interactions of the plaintiffEvens Elie with law enforcement officials.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdenied that branch of the motion of the defendants City of New York, Anthony Cheatham,Thomas Fitzgerald, and Darrell Grant which was to compel the plaintiffs to answer certainquestions at their depositions relevant to the prior interactions of the plaintiff Evens Elie with lawenforcement officials is deemed to be an application for leave to appeal from that portion of theorder (see CPLR 5701 [c]), and leave to appeal from that portion of the order is granted;and it is further,
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof denying that branch of the motion of the defendants City of NewYork, Anthony Cheatham, Thomas Fitzgerald, and Darrell Grant which was to bifurcate and staydiscovery and trial on the sixth cause of action pending resolution of the other claims andsubstituting therefor a provision granting that branch of the motion, and (2) by deleting theprovision thereof denying that branch of the motion of the defendants City of New York,Anthony Cheatham, Thomas Fitzgerald, and Darrell Grant which was to compel the plaintiffs toanswer certain questions at their depositions relevant to the prior interactions of the plaintiffEvens Elie with law enforcement officials and substituting therefor a provision granting thatbranch of their motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.[*2]
"On a motion to dismiss the complaint pursuant to CPLR3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberalconstruction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefitof every possible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman vOlinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84NY2d 83, 87 [1994]). A municipality may not be held liable pursuant to 42 USC § 1983solely on a theory of respondeat superior (see Monell v New York City Dept. of SocialServs., 436 US 658, 691 [1978]). "For a cause of action pursuant to 42 USC § 1983 tolie against a municipality, the action that is alleged to be unconstitutional must implement[ ] orexecute[ ] a policy statement, ordinance, regulation, or decision officially adopted andpromulgated by that body's officers or have occurred pursuant to a practice so permanent andwell settled as to constitute a custom or usage with the force of law" (Ellison v City of New Rochelle, 62AD3d 830, 832-833 [2009] [internal quotation marks omitted]). " '[A] municipality can befound liable under 42 USC § 1983 for deprivation of constitutional rights only where themunicipality itself causes the constitutional violation at issue' " (id. at 833, quotingJohnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 293 [2003]). Here, theallegations in the complaint sufficiently allege that the City of New York maintained a policy orcustom that caused the plaintiff Evens Elie to be subjected to a denial of a constitutional right(see Monell v New York City Dept. of Social Servs., 436 US at 694; Jackson v PoliceDept. of City of N.Y., 192 AD2d 641 [1993], cert denied 511 US 1004 [1994]; see generally Pendleton v City of NewYork, 44 AD3d 733, 737 [2007]). Accordingly, the complaint states a cause of action torecover damages for civil rights violations and the Supreme Court properly denied that branch ofthe motion which was to dismiss that cause of action pursuant to CPLR 3211 (a) (7) insofar asasserted against the City of New York.
However, the Supreme Court improvidently exercised its discretion in denying that branch ofthe motion of the defendants City of New York, Anthony Cheatham, Thomas Fitzgerald, andDarrell Grant (hereinafter collectively the appellants), which was to bifurcate and stay discoveryand trial on the sixth cause of action pending resolution of the other claims. Considerations ofprejudice and judicial economy warrant granting that relief (see Landsman v Village ofHancock, 296 AD2d 728, 731 [2002]; Daniels v Loizzo, 178 FRD 46, 48 [1998];Ricciuti v New York City Tr. Auth., 796 F Supp 84, 85-86 [1992]).
Finally, the Supreme Court improvidently exercised its discretion in denying that branch ofthe appellants' motion which was to compel the plaintiffs to answer certain questions at theirdepositions relevant to Elie Evens' prior interactions with law enforcement officials. Theappellants demonstrated that the questions were "material and necessary" to their defense of thecase (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968] [internal quotationmarks omitted]). The plaintiffs' contention that the information would be inadmissible at trialwas not a legitimate basis for objecting (see Watson v State of New York, 53 AD2d 798,799 [1976]). Dillon, J.P., Florio, Chambers and Roman, JJ., concur.