LaSHANN DeARCY HALL, United States District Judge

John E. Quinn, Long Beach, NY, for Plaintiffs.

Mitchell Garber, Worth, Douglas LaBarbera, Longworth & London, LLP, Lucienne Pierre, Office of the Corporation Counsel, New York, NY, for Defendants.

MEMORANDUM AND ORDER

LaSHANN DeARCY HALL, United States District Judge

Plaintiffs Denise Dollard and Michael Dollard bring the instant action against the City of New York (the "City"), the New York City Police Department ("NYPD"), Captain Peter Fortune, and Police Officers Rhea Tiwary and Russell Kenton. (Am. Compl., ECF No. 21.) Specifically, Plaintiff Denise Dollard brings the following causes of action: (1) excessive force against Defendant Tiwary; (2) denial of medical care against Defendants Tiwary and Kenton; (3) assault and battery against Defendant Tiwary; (4) dereliction of duty, depraved indifference, and failure to intercede against Defendant Kenton; (5) intentional infliction of emotional distress ("IIED") against Defendant Tiwary; (6) negligent infliction of emotional distress ("NIED") against Defendants Tiwary, Kenton, and Fortune; (7) negligence against Defendants Tiwary, Kenton, and Fortune as agents of the City; (8) wrongful arrest as against Defendants Tiwary and Kenton; (9) malicious prosecution as against Defendants Tiwary, Kenton, and Fortune; (10) violation of civil rights against Defendants Tiwary, Kenton, and Fortune. Additionally, Plaintiff Michael Dollard brings a claim against Defendants for loss of consortium. Defendants the City, Kenton, and Fortune move pursuant to Federal Rule of Civil Procedure 56 for partial summary judgment to dismiss the claims for failure to intervene, denial of medical treatment, malicious prosecution, IIED (to the extent any such claim is asserted against the City), NIED, and negligence. (ECF No. 55.) Defendant Tiwary, represented by separate counsel, moves pursuant to Rule 56 for partial summary judgment to dismiss the claims for denial of medical care, malicious prosecution, IIED, NIED, and negligence. (See ECF No. 61.) BACKGROUND

At approximately 8:40 a.m. on May 19, 2015, Defendants Tiwary and Kenton were dispatched to the vicinity of the Saint Margaret Mary's Church (the "Church") in response to a 911 call about a dispute in progress. (Pls.' Resp. Defs.' Statement Undisputed Facts Def. City, Furtune & Kenton Their Mot. Summ. J. & Pls.' Further Statement Material Facts ("Pls.' Resp. 56.1") ¶ 7, ECF No. 51.) Tiwary and Kenton arrived at the Church approximately 5 minutes later and were waved down by the 911 caller. (Id. ¶¶ 8-9.) After Tiwary spoke with the caller, Tiwary and Kenton went inside the Church to speak with Plaintiff, whom they encountered inside the Church. (Id. ¶¶ 13, 16.) The encounter lasted approximately three minutes. (Id. ¶ 17.) During this encounter, Tiwary accused Plaintiff of spitting on her. (Id. ¶ 19.)

Tiwary asked Plaintiff for her identification multiple times. (Id. ¶ 21.) Plaintiff indicated that her identification was locked inside her office in another part of the Church. (Id. ¶ 23.) Plaintiff then proceeded to walk towards her office, which could be reached by walking through a secretary's office. (Id. ¶¶ 24, 28.) Tiwary and Kenton followed. (Id. ¶ 25.) A Church security camera captured the subsequent events. (Id. ¶ 26.) According to the video footage, as Plaintiff walked into the secretary's office, a glass door began to close. (Id. ¶ 30.) Tiwary grabbed the glass door and propped it open. (Id. ¶ 31.) Plaintiff then walked back through the now-open glass door and stood in the waiting area. (Id. ¶ 32.) Over the next approximately twenty seconds, Plaintiff walked in and out of the secretary's office, into the waiting area and foyer before eventually standing in the doorway of the secretary's office. (Id. ¶¶ 32, 34, 35.) As Plaintiff walked through the doorway to the secretary's office past Tiwary, "Tiwary elbowed [Plaintiff] in the back, shouldered her in the left shoulder blade, put one handcuff on her, headbutted her in the right shoulder blade, put the second handcuff on her and swung her around and into a glass door." (Id. ¶¶ 36-37.) These events occurred outside of the view of the camera. During the physical encounter between Tiwary and Plaintiff, Kenton was standing in the waiting room, which is located between the foyer and the secretary's office. (Id. ¶ 39.)

Shortly after Plaintiff was restrained, she lost her balance and whispered that she could not breathe. (Id. ¶¶ 46, 47.) Kenton immediately directed Tiwary to call for an ambulance. (Id. ¶ 48.) The call was placed at 9:08 a.m. (Id. ¶ 50.) Tiwary and Kenton then sat Plaintiff down in a nearby chair. (Id. ¶ 49.) The ambulance arrived at 9:18 a.m. (Id. ¶ 56.) Plaintiff was examined by 9:19 a.m. (Id. )

As Plaintiff was being escorted out of the Church to the ambulance, she again experienced vertigo and twice briefly lost consciousness. (Id. ¶ 55.) At the ambulance, Plaintiff informed the EMTs that she "didn't feel good," her handcuffs were too tight, and that she "banged [her] head," resulting in "a little knot" that was "not a big deal." (Id. ¶ 57.) EMTs evaluated Plaintiff at the scene and found that she had "no medical problem." (Id. ¶¶ 58-59.) Plaintiff was nonetheless taken to the hospital. (Id. ¶ 61.)

At the hospital, Plaintiff's blood pressure was taken, she was given an EKG, and Plaintiff was ultimately diagnosed with "syncope [fainting] and collapse" and "dizziness and giddiness." (Id. ¶¶ 63, 64.) In addition, Plaintiff again complained to Officer Kenton that her handcuffs were too tight. (Id. ¶ 93.) He did not loosen them. (Id. ) As a result, Plaintiff's wrists were swollen with red marks, hurting, and slightly bleeding—her hands were red and numb. (Id. ¶ 94.) Plaintiff did not consult the doctor about the marks on her wrists and the marks went away after a week and without any medication. (Id. ¶¶ 95, 96.)

At some point after Plaintiff was taken to the hospital, Captain Fortune arrived at the Church. (Id. ¶ 73.) Fortune reviewed a surveillance video inside an office in the Church and determined that there was not sufficient evidence to support an arrest for an assault and obstructing governmental administration ("OGA"). (Id. ¶¶ 80, 84.) Fortune determined that a criminal-court summons for disorderly conduct, rather than a formal arrest, was appropriate. (Id. ¶ 85.)

At around 12:45 p.m. that afternoon, Tiwary arrived at the hospital and issued Plaintiff the summons for disorderly conduct alleging that Plaintiff had spat and bumped into Tiwary, causing annoyance and alarm. (Id. ¶¶ 65-66.) Plaintiff left the hospital around 1:00 p.m. and went home. (Id. ¶ 68.) She was never taken to the 114th precinct. (Id. ¶ 69.) Plaintiff made two appearances in court related to the summons. (Id. ¶ 90.) The summons was dismissed on August 11, 2015 at the second court appearance. (Id. ¶¶ 91-92.)

STANDARD OF REVIEW

Summary judgment must be granted when there is "no genuine dispute as to any material fact and the movant[s are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists when the evidence as to a fact that might affect the suit's outcome is such that a reasonable jury could find in favor of the non-movant at trial. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. At summary judgment, the movants bear the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). Once the movants meet that burden, the non-movant may defeat summary judgment only by adducing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(c) ; see also Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002). The Court is to view all such facts in the light most favorable to the non-movant, drawing all reasonable inferences in her favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Still, to survive summary judgment, a non-movant must present concrete evidence and may not rely on mere conclusory or speculative claims or denials. Quinn v. Syracuse Model Neighborhood Corp. , 613 F.2d 438, 445 (2d Cir. 1980) ("The litigant opposing summary judgment, therefore, ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial.") (quoting SEC v. Research Automation Corp. , 585 F.2d 31, 33 (2d Cir. 1978) ).

DISCUSSION

I. Failure to Intervene

42 U.S.C. § 1983 imposes liability not only on an officer who himself uses excessive force but also on fellow officers who fail to intervene when excessive force is used by a colleague in their presence. O'Neill v. Krzeminski , 839 F.2d 9, 11 (2d Cir. 1988) ("A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers."). However, "for a law enforcement officer to be held liable for another officer's use of excessive force, ‘there must have been a realistic opportunity [for the bystander officer] to intervene to prevent the harm from occurring.’ " Rogoz v. City of Hartford , 796 F.3d 236, 251 (2d Cir. 2015) (quoting Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994) ). Officer Kenton maintains that the claim against him must be dismissed because he "did not have a realistic opportunity to intervene to stop [the alleged attack] because of how quickly it occurred." (Def. City, Fortune & Kenton's Mem. Law Supp. Their Mot. Partial Summ. J. 11, ECF No. 57.) Based on the evidence before it, the Court is unable to make a determination on this question as a matter of law. Indeed, whether an officer had a "realistic opportunity" to intervene is normally a question for the jury, unless, "considering all the evidence, a reasonable jury could not possibly conclude otherwise." Anderson , 17 F.3d at 557.

Here, the physical encounter between Tiwary and Plaintiff occurred over the span of approximately nine seconds. (See Decl. Ashley R. Garman Supp. City N.Y.'s, Peter Fortune's & Russell Kenton's Mot. Partial Summ. J. Ex. F. at 01:21-01:30, ECF No. 56-6.) It is undisputed that Tiwary "elbowed [Plaintiff] in the back, shouldered her in the left shoulder blade, put one handcuff on her, headbutted her in the right shoulder blade, put the second handcuff on her and swung her around and into a glass door." (Pls.' Resp. 56.1 ¶ 37.) Although nine seconds is a relatively short duration, a reasonable juror could conclude that Kenton had an opportunity to intervene to stop at least some of Tiwary's conduct. See Douglas v. City of New York , 730 F. App'x 12, 16, 17 (2d Cir. 2018) (summary order) (finding a jury could reasonable conclude that the officers had enough time to stop their colleague(s) from using excessive force where video shows force included "dragging Appellant on the ground, kneeing him in the back, pressing a night stick on his neck, twisting his right arm behind his back, and subduing and cuffing Appellant while he was lying on the ground face down"). For this reason, a reasonable juror could find that Defendant Kenton had a realistic opportunity to intervene. Accordingly, summary judgment is inappropriate on this claim.

II. Denial of Medical Care

To establish a claim of deliberate indifference to a medical condition in violation of the Fourteenth Amendment, a pretrial-detainee plaintiff must "show that she had a serious medical condition and that it was met with deliberate indifference." Bruno v. Schenectady , 727 F. App'x 717, 720 (2d Cir. 2018) (summary order) (citing Cuoco v. Moritsugu , 222 F.3d 99, 106 (2d Cir. 2000). The first element requires "a condition of urgency," while the second element looks into the reasonableness of the defendant's conduct. Id. "[A]n official does not act in a deliberately indifferent manner toward an arrestee unless the official ‘acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known , that the condition posed an excessive risk to health or safety.’ " Id. (emphasis in original) (citing Darnell v. Pineiro , 849 F.3d 17, 35 (2d Cir. 2017) ). Defendants maintain that Plaintiff failed to make either showing. The Court agrees.

Plaintiff has not adduced evidence of a serious medical condition. That is, Plaintiff's difficulty breathing, vertigo, and brief losses of consciousness are not "condition[s] of urgency, ... that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin , 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly , 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)); see also Goodwin v. Kennedy , No. CV 13-1774, 2015 WL 1040663, at *13 (E.D.N.Y. Mar. 10, 2015) ("While ‘[d]ifficulty breathing due to asthma may be a serious medical condition, depending on the severity of the asthma attack,’ complaints of ‘temporary breathing difficulties' are not sufficient to support a deliberate indifference claim.’ " (quoting Flemming v. Velardi , No. 02 Civ. 4113, 2003 WL 21756108, at *4 (S.D.N.Y. July 30, 2003) ). Even if Plaintiff had established a sufficiently serious medical condition, she has not shown that Defendants recklessly failed to act with reasonable care to mitigate a risk. It is undisputed that shortly after Plaintiff was restrained, she lost her balance and whispered that she could not breathe. (Pl.'s Resp. 56.1 ¶¶ 46, 47.) It is further undisputed that Kenton immediately directed Tiwary to call for an ambulance. (Id. ¶ 48.) The call was placed at 9:08 a.m. (Id. ¶ 50.) Tiwary and Kenton then sat Plaintiff down in a nearby chair. (Id. ¶ 49.) The ambulance arrived at 9:18 a.m. (Id. ¶ 56.) Plaintiff was examined by 9:19 a.m. (Id. )

Notwithstanding these undisputed facts, Plaintiff maintains that Kenton and Tiwary should be liable for deliberate indifference. Specifically, Plaintiff argues that Defendant Kenton exacerbated her symptoms of vertigo by exposing her to triggers and risks by forcing her to walk upstairs and down the street in handcuffs. (Pl.'s Mem. Law Opp. Mot. Partial Summ. J. Behalf Defs. City N.Y. Police Off. Russell Kenton & Cpt. Peter Fortune 21, ECF No. 60.) While Plaintiff's argument with respect to Tiwary is not all together clear, she seems to argue that liability results because Tiwary was "agitated, enraged, and out of control and had acted with violence toward Plaintiff." (Pls.' Mem. Law Opp. Mot. Partial Summ. J. Behalf Def. Police Off. Rhea Tiwary 14-15, ECF No. 66.) Not so. Because the record demonstrates that Tiwary and Kenton acted quickly to call for an ambulance and Tiwary immediately sat Plaintiff down in a nearby chair after Plaintiff began to lose her balance, they cannot be said to have acted with deliberate indifference. Accordingly, Tiwary and Kenton are entitled to summary judgment on this claim.

III. Malicious Prosecution

Plaintiff's malicious-prosecution claim stems from the criminal summons issued against her by Defendant Fortune. The elements of a malicious-prosecution claim under New York law are "(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor." Rohman v. N.Y.C. Transit Auth. (NYCTA) , 215 F.3d 208, 215 (2d Cir. 2000) (citation omitted). To allege a cause of action for malicious prosecution under § 1983, a plaintiff "must assert, in addition to the elements of malicious prosecution under state law, that there was (5) a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights." Id.

Here, Plaintiff's claim for malicious prosecution fails for failure to show a restraint of liberty under the Fourth Amendment. In an attempt to establish a Fourth Amendment deprivation, Plaintiff relies on the Second Circuit's decision in Swartz v. Insogna , 704 F.3d 105 (2d Cir. 2013). There, the court determined that the plaintiff experienced a Fourth Amendment seizure in connection with his court appearances after the arresting officer swore out a criminal complaint against him. Id. at 112. Plaintiff's reliance on Swartz is misplaced. Swartz , which involved compulsory court appearances after the filing of a criminal complaint, is factually distinct from the instant case. Here, Plaintiff was never taken to the precinct or subject to a criminal complaint. Instead, Plaintiff was only issued a non-felony summons and made two subsequent court appearances. (Pls.' Resp. 56.1 ¶¶ 65, 90.) In the context of a false-arrest claim, the Second Circuit has held that a "pre-arraignment, non-felony summons requiring no more than a later court appearance does not constitute a Fourth Amendment seizure." Burg v. Gosselin , 591 F.3d 95, 98 (2d Cir. 2010). Moreover, the Second Circuit has later applied this holding to a malicious-prosecution claim in Faruki v. City of New York , where the proceedings again the plaintiff placed no restrictions on her other than a requirement to appear in court on two occasions. 517 F. App'x 1 (2d Cir. 2013) (summary order). On those facts, the Second Circuit held there was "an insufficient deprivation of liberty to support a Fourth Amendment malicious prosecution claim." Id. The same conclusion is warranted here. Plaintiff's malicious-prosecution claim must be dismissed.

IV. Negligence, NIED, and IIED

New York does not, as a matter of public policy, recognize a claim for negligence arising out of an arrest or prosecution. Rivers v. Towers, Perrin, Forester & Crosby, Inc. , No. 07-CV-5441, 2009 WL 817852, at *10 (E.D.N.Y. Mar. 27, 2009) ("As a matter of public policy a negligence claim arising out of an investigation or prosecution will not be recognized under New York law."); accord Sajimi v. City of New York , No. 07-CV-3252, 2011 WL 135004, at *9 (E.D.N.Y. Jan. 13, 2011) (finding that any wrongful arrest that flows from an unlawful arrest is vindicated through a false-arrest claim, not through a negligence claim). To the extent that a claim for negligence and/or NIED is based upon injury incident to an arrest, a plaintiff must resort to the traditional tort remedies of false arrest, false imprisonment, and malicious prosecution. See Jenkins v. City of New York , No. 91-CV-3639, 1992 WL 147647, at *8 (S.D.N.Y. Jun.15, 1992) ("Plaintiffs cannot circumvent the well-established requirements of the false arrest and malicious prosecution causes of action by inventing new theories of negligence."); Crews v. Cty. of Nassau , 996 F. Supp. 2d 186, 214 (E.D.N.Y. 2014) (granting defendant summary judgment because "a claim for [NIED] should be dismissed where the conduct for the underlying claim may be redressed by way of traditional tort remedies" (citation omitted)); see also Bernard v. United States , 25 F.3d 98, 102 (2d Cir. 1994) ("Under New York law, a plaintiff may not recover under general negligence principles for a claim that law enforcement officers failed to exercise the appropriate degree of care in effecting an arrest or initiating a prosecution."). This is also true with respect with the tort of IIED. That is, the tort of IIED "may not be used as a substitute for an available traditional tort theory." Caravalho v. City of New York , No. 13-CV-4174, 2016 WL 1274575, at *23 (S.D.N.Y. Mar. 31, 2016) (quoting Brewton v. City of New York , 550 F. Supp. 2d 355, 370 (E.D.N.Y. 2008) ).

Here, Plaintiff's claims for negligence, NIED, and IIED are rooted in the same conduct that underlies her Fourth Amendment-derived claims. Namely, Kenton's failure to use "de-escalation techniques," the excessive force imposed by Tiwary, Kenton's purported deliberate indifference, and the issuance of the summons by Fortune are all clearly encompassed in her claims for false arrest, malicious prosecution, excessive force, and assault and battery. To the extent Plaintiff suffered any emotional damage from these claims, it is entirely subsumed by them. See id. (dismissing IIED and NIED claims on the basis that the conduct and any resulting emotional damage is entirely subsumed by plaintiff's common law assault and battery claims and federal excessive force claim).

Accordingly, Defendants are entitled to summary judgment on Plaintiff's negligence, NIED, and IIED claims.

CONCLUSION

For the foregoing reasons, Defendants' motion for partial summary judgment is GRANTED. Plaintiff's claims against Defendants the City, Kenton, and Fortune for denial of medical treatment, malicious prosecution under § 1983, IIED, NIED, and negligence are DISMISSED with prejudice. Plaintiff's claims against Defendant Tiwary for denial of medical care, malicious prosecution under § 1983, IIED, NIED, and negligence are dismissed with prejudice. As such, the following claims remain to be tried: Plaintiff Denise Dollard's claims for excessive force against Defendant Tiwary; assault and battery against Defendant Tiwary; failure to intervene against Defendant Kenton; wrongful arrest as against Defendants Tiwary and Kenton; and violation of civil rights against Defendants Tiwary, Kenton, and Fortune; as well as Plaintiff Michael Dollard's claim against Defendants for loss of consortium.

SO ORDERED: