| Ronessa H. v City of New York |
| 2012 NY Slip Op 08694 [101 AD3d 947] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Ronessa H., Appellant-Respondent, v City of New York etal., Respondents-Appellants, et al., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andDona B. Morris of counsel), for respondents-appellants.
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 theSupreme Court, Kings County (Martin, J.), dated November 16, 2010, as, after a jury verdictfinding the defendant City of New York 50% at fault in the happening of the incident, thedefendant Andrew C. Johnson 30% at fault, and the defendant Donald Nelson 20% at fault, andawarding damages in the sums of $650,000 for past pain and suffering and $90,000 for futurepain and suffering, and awarding punitive damages against the defendant Donald Nelson in thesum of $175,000, granted that branch of the motion of the defendants City of New York andDonald Nelson which was pursuant to CPLR 4404 (a) to set aside the verdict as against theweight 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 Cityof New York and Donald Nelson cross-appeal, as limited by their brief, from so much of thesame 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 forfailure 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 ofthe motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR4404 (a) for judgment as a matter of law dismissing the complaint insofar as asserted againstthose defendants for failure to establish a prima facie case is granted, that branch of the motion ofthe defendants City of New York and Donald Nelson which was pursuant to CPLR 4404 (a) toset aside the verdict as against the weight of the evidence and for a new trial as to thosedefendants is denied as academic, and so much of the order as directed a new trial on the issuesof 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 furtherproceedings on the complaint insofar as asserted against the defendant Andrew C. Johnson; [*2]and it is further,
Ordered that one bill of costs is awarded to the defendants City of New York and DonaldNelson.
The plaintiff commenced this action alleging that she was sexually assaulted in her home bythe defendant Andrew C. Johnson, a New York City police officer. With respect to the plaintiff'scauses of action against the defendant City of New York that were based on the alleged conductof Johnson, who defaulted in this action, the Supreme Court charged the jury on negligentemployment, training, and supervision (see PJI 2:240). As to the plaintiff's claim that thedefendant police officer Donald Nelson violated her civil rights by failing to protect her from theassault by Johnson, the court charged the jury on 42 USC § 1983 and the deprivation of theright 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 grantedonly when the trial court determines that, upon the evidence presented, there is no valid line ofreasoning and permissible inferences which could possibly lead rational persons to theconclusion reached by the jury upon the evidence presented at trial, and no rational process bywhich the jury could find in favor of the nonmoving party" (Ryan v City of New York, 84 AD3d 926, 926-927 [2011] [internalquotation marks omitted]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). "Inconsidering such a motion, the trial court must afford the party opposing the motion everyinference which may properly be drawn from the facts presented, and the facts must beconsidered in a light most favorable to the nonmovant" (Jourbine v Ma Yuk Fu, 67 AD3d 865, 866 [2009] [internalquotation marks omitted]).
A necessary element of a cause of action alleging negligent retention or negligent supervisionis that the "employer knew or should have known of the employee's propensity for the conductwhich caused the injury" (Bumpus vNew York City Tr. Auth., 47 AD3d 653, 654 [2008] [internal quotation marksomitted]).
Here, although the plaintiff presented testimony that Johnson had been reprimanded forfailing to report a lost prisoner, that is not conduct that would reasonably put the City on noticethat Johnson was inclined toward conduct such as that which allegedly caused the plaintiff'sinjuries (see Dennard v Small WorldCtr., Inc., 29 AD3d 730 [2006]; Kelly v City of New York, 16 AD3d 463 [2005]; Oliva v Cityof New York, 297 AD2d 789 [2002]; Ray v Metropolitan Transp. Auth., 221 AD2d613 [1995], cert denied sub nom. Ray v Willett, 519 US 822 [1996]; cf.Fenstermacher v Nevins Amusements, 273 AD2d 347 [2000]). Nor did the plaintiff establishthat a special duty was owed to her by the City (see Valdez v City of New York, 18 NY3d 69, 80 [2011]).Accordingly, the Supreme Court should have granted that branch of the motion of the City andNelson which was pursuant to CPLR 4404 (a) for judgment as a matter of law dismissing thecomplaint insofar as asserted against the City (see Ray v Metropolitan Transp. Auth., 221AD2d at 614).
As to the plaintiff's 42 USC § 1983 claim arising out of Nelson's alleged deprivation ofher rights under the Eighth Amendment by failing to protect her from Johnson, the plaintiff wasnot in police custody at the time of the alleged sexual assault (cf. DeShaney v WinnebagoCounty Dept. of Social Servs., 489 US 189 [1989]; Clarke v Sweeney, 312 F Supp2d 277, 296 [2004]). 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 AD3d520, 522 [2005]; see Farmer v Brennan, 511 US 825 [1994]; see also Galapo vCity of New York, 95 NY2d 568, 575 [2000]; Carroll v City of New York, 287AD2d 430, 431 [2001]; Malenczak v City of New York, 265 AD2d 532, 533 [1999]).Thus, the Supreme Court should have granted that branch of the motion of the City and Nelsonwhich was pursuant to CPLR 4404 (a) for judgment as a matter of law dismissing the complaintinsofar as asserted against Nelson.
The plaintiff's remaining contentions either are without merit or, having not been raisedbefore the Supreme Court, are not properly before this Court.[*3]
In light of the facts that the complaint must be dismissedinsofar as asserted against the City and Nelson and that the Supreme Court has granted theplaintiff a default judgment against Johnson, based on his failure to answer or appear in thisaction, we remit the matter to the Supreme Court, Kings County, for further proceedings on thecomplaint insofar as asserted against Johnson. Skelos, J.P., Balkin, Leventhal and Austin, JJ.,concur.