| Vargas v City of New York |
| 2013 NY Slip Op 02391 [105 AD3d 834] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Jose Vargas, Respondent, v City of New York etal., Appellants. |
—[*1] Burns & Harris (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries and for civil rightsviolations pursuant to 42 USC § 1983, the defendants appeal (1) from a judgmentof the Supreme Court, Kings County (Baily-Schiffman, J.), dated January 28, 2011,which, in effect, upon the denial of those branches of the motion of the defendant City ofNew York which were to dismiss so much of the complaint as alleged negligence andcivil rights violations pursuant to 42 USC § 1983, and upon a jury verdict, is infavor of the plaintiff and against them in the principal sum of $17,619,725.73, (2), aslimited by their brief, from so much of an order of the same court dated May 11, 2011, asdenied their motion pursuant to CPLR 4404 (a), inter alia, to set aside the verdict and forjudgment as a matter of law or, in the alternative, to set aside the verdict as contrary tothe weight of the evidence and for a new trial, and (3) from an order of the same courtdated May 13, 2011, which granted the plaintiff's motion for an attorney's fee pursuant to42 USC § 1988.
Ordered that the judgment is reversed, on the law, those branches of the motion ofthe defendant City of New York which were to dismiss so much of the complaint asalleged negligence and civil rights violations pursuant to 42 USC § 1983 aregranted, and those portions of the complaint are dismissed; and it is further,
Ordered that the appeal from the order dated May 11, 2011, is dismissed as academicin light of our determination on the appeal from the judgment; and it is further,
Ordered that the order dated May 13, 2011, is reversed, on the law, and the plaintiff'smotion for an attorney's fee pursuant to 42 USC § 1988 is denied; and it is further,
Ordered that one bill of costs is awarded to the defendants.
On November 30, 2006, the plaintiff filed a notice of claim with the City of NewYork alleging, inter alia, that he was "falsely arrested, falsely imprisoned, abused,assaulted, battered, caused to sustain serious personal injuries and deprived of his CivilRights." In addition, the notice of claim alleged damages for "[p]ersonal injuries and[l]oss of Civil Rights incidental to assault and [*2]battery,and false arrest and imprisonment, humiliation and embarrassment." The plaintiffsubsequently commenced this action against the City and "P.O. 'John Doe,' " seeking,among other things, to recover damages for negligence and for civil rights violationspursuant to 42 USC § 1983. The complaint contained an allegation that thedefendants had "deprived [the plaintiff] of necessary medical treatment."
Prior to trial, the City moved, inter alia, to dismiss so much of the complaint asalleged negligence and civil rights violations pursuant to 42 USC § 1983 on thegrounds that the plaintiff's allegation that he was deprived of necessary medical treatmentwas not set forth in the notice of claim or bill of particulars, and that, pursuant to CPLR3211 (a) (7), the complaint failed to state a cause of action under 42 USC § 1983.The Supreme Court denied those branches of the City's motion. The plaintiff proceededto trial on the theory that the City had deprived him of medical care by denying himinsulin for his diabetic condition when he was in police custody. Prior to summations, thecourt granted that branch of the plaintiff's motion which was to amend the caption so asto replace "John Doe" with certain individual defendants named in their officialcapacities. Following trial, a judgment was entered in favor of the plaintiff and againstthe defendants in the principal sum of $17,619,725.73, including an award of punitivedamages in the total sum of $3,000,000, which the jury awarded against the individualpolice officer defendants.
"To enable authorities to investigate, collect evidence and evaluate the merit of aclaim, persons seeking to recover in tort against a municipality are required, as aprecondition to suit, to serve a Notice of Claim" (Brown v City of New York, 95NY2d 389, 392 [2000]; see General Municipal Law § 50-e). The GeneralMunicipal Law requires that the notice set forth, among other things, "the nature of theclaim," and "the time when, the place where and the manner in which the claim arose"(General Municipal Law § 50-e [2]; see Brown v City of New York, 95NY2d at 393; Palmer v Societyfor Seamen's Children, 88 AD3d 970, 971 [2011]). "The requirements of thestatute are met when the notice describes the accident with sufficient particularity so as toenable the defendant to conduct a proper investigation thereof and to assess the merits ofthe claim" (Palmer v Society for Seamen's Children, 88 AD3d at 971; seeO'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Ingle v New York City Tr.Auth., 7 AD3d 574, 575 [2004]). Here, the notice of claim failed to set forth anyallegations of negligence on the part of the defendants regarding the deprivation ofmedical treatment to the plaintiff when he was in police custody. Therefore, the SupremeCourt should have directed dismissal of so much of the complaint as alleged negligence,due to the plaintiff's failure to file a proper notice of claim (see GeneralMunicipal Law § 50-e [2]; Garcia v O'Keefe, 34 AD3d 334, 335 [2006]; Bryant vCity of New York, 188 AD2d 445, 446 [1992]; Demorcy v City of NewYork, 137 AD2d 650, 650-651 [1988]).
The defendants correctly argue that the plaintiff may not replead so much of thecomplaint as alleged negligence, since the allegations of negligence were not set forth inthe notice of claim (see Matter of Village of Pelham v City of Mount Vernon,302 AD2d 397, 399 [2003]).
Although a notice of claim is not a condition precedent to maintaining a cause ofaction pursuant to 42 USC § 1983 (see Meyer v County of Suffolk, 90 AD3d 720, 722[2011]), the Supreme Court also should have directed dismissal of so much of thecomplaint as alleged civil rights violations pursuant to that statute for failure to state acause of action pursuant to CPLR 3211 (a) (7). In considering a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged inthe complaint as true, accord plaintiffs the benefit of every possible favorable inference,and determine only whether the facts as alleged fit within any cognizable legal theory"(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Sokol v Leader, 74 AD3d1180, 1180-1181 [2010]). To hold a municipality liable under section 1983 for theconduct of employees below the policymaking level, a plaintiff must show that theviolation of his or her constitutional rights resulted from a municipal custom or policy(see Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978];Dwares v City of New York, 985 F2d 94, 100 [1993]). Similarly, where claimsare asserted against individual municipal employees in their official capacities, theremust be proof of a municipal custom or policy in order to permit recovery, since suchclaims are tantamount to claims against the municipality itself (see Hafer v Melo,502 US 21, 25 [1991]; Anthony v City of New York, 339 F3d 129, 138-139[2003]; Dwares v City of New York, 985 F2d at 100; Rosen & Bardunias vCounty of Westchester, 228 AD2d 487, 487-488 [1996]). Here, the complaint failedto allege any facts from which it could be reasonably inferred [*3]that the defendants had a policy or custom of deprivingmedical treatment to persons in police custody (see Monell v New York City Dept. ofSocial Servs., 436 US at 694; Bennett v City of New York, 425 Fed Appx79, 81 [2d Cir 2011]; Cozzani vCounty of Suffolk, 84 AD3d 1147 [2011]; R.A.C. Group v Board of Educ.of City of N.Y., 295 AD2d 489, 490 [2002]; Rosen & Bardunias v County ofWestchester, 228 AD2d at 487-488; Willinger v Town of Greenburgh, 169AD2d 715, 716 [1991]).
Accordingly, the Supreme Court should have granted those branches of the City'smotion which were to dismiss so much of the complaint as alleged negligence and civilrights violations pursuant to 42 USC § 1983.
The plaintiff is not entitled to an attorney's fee pursuant to 42 USC § 1988,since, in view of our disposition of the appeal from the judgment, he is not a prevailingparty (see Matter of Miller v DeBuono, 235 AD2d 480, 481 [1997]).
In light of our determination, we need not reach the parties' remaining contentions.Skelos, J.P., Balkin, Leventhal and Roman, JJ., concur.