Briccetti, J.

MEMORANDUM DECISION :

Plaintiffs Jereis Hattar and Salameh Hatter bring this action alleging claims for excessive force in violation of the Fourth Amendment and for assault, battery, and negligent hiring, training, and retention under New York common law. Plaintiffs also assert a Monell claim. Now pending is defendants' motion for summary judgment. (Doc. #40). For the following reasons, the motion is GRANTED as to (1) plaintiffs' claims against defendant "White Plains Police Department"; (2) plaintiffs' Monell claim against defendant City of White Plains; (3) plaintiffs' claim for negligent hiring, retention, and training; (4) all claims against defendant Zepeda; and (5) all claims asserted by plaintiff Salameh Hattar. The motion is DENIED as to plaintiff Jereis Hattar's excessive force, assault, and battery claims against the individual defendants (other than Zepeda).

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 as to plaintiffs' federal claims and 28 U.S.C. § 1367(a) as to plaintiffs' state law claims.

BACKGROUND

The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.

Plaintiffs Jereis Hattar ("Jereis") and Salameh Hattar ("Salameh") are brothers who were arrested May 24, 2008, by members of the City of White Plains Police Department. On that evening, plaintiffs were celebrating a friend's birthday at a bar on Mamaroneck Avenue in White Plains.

According to the police incident report, at approximately 2:30 a.m., defendant Police Officers Anthony Carelli, Julio Orellana, and Sebastian DaCosta observed Jereis yelling and screaming profanities at the intersection of East Post Road and Mamaroneck Avenue. At his deposition, DaCosta testified that he first saw Jereis as he was being placed into the patrol car by Carelli and Orellana. The incident report states:

[Jereis's] actions caused public alarm and a large crowd to gather. We advised Jereis numerous times to lower his voice and leave the area due to the public inconvenience he was creating, however, he did not comply. He was subsequently placed into handcuffs and under arrest.

As PO Orellana and I placed [Jereis] into the rear of Patrol Vehicle #4, another m/w wearing [a] red shirt later identified [as] Jereis' brother, Salameh - became extremely belligerent and started yelling profanities. This caused even more public alarm and several other pedestrians took notice and gathered in the immediate area. He was also issued numerous verbal warnings to leave the area and lower his voice. He refused and was also placed under arrest.

Defendant Sergeant John Glynn testified that he first noticed plaintiffs as he was driving by and saw them. He could also hear them yelling and screaming because his car windows were down. One of the people he saw was holding his right eye, and there were five or six people around that person. Defendant Police Officer Hector Fuentes said he heard no commotion prior to Glynn's arresting Jereis and did not recall Jereis holding his eye as he spoke with Glynn. Plaintiffs do not dispute that Salameh may have been holding his head because he was sick and vomiting. Glynn testified that as he approached him, Jereis was saying things like "fuck those guys," "fuck White Plains," and "fuck you people."

Following Glynn, the next officers at the scene were defendants Police Officers Fuentes and Anthony DeMaria who were occupying the Emergency Service Unit Truck. Fuentes testified that he heard Jereis yelling profanities.

At his deposition, Jereis testified that after he was handcuffed, five or six officers approached him and more than one officer used his nightstick on him. Jereis further testified that the officers beat him all over his body with their sticks and boots.

Fuentes testified that when he arrested Jereis, Jereis had hematomas and swelling above his eye. Glynn and Carelli both testified that they did not notice whether Jereis had a black eye. Officer Orellana stated he did not notice whether Jereis appeared to be injured, but also testified that the lighting made it difficult to observe. Orellana further testified that while driving to the police station, Jereis banged his face or head against the police car's partition.

Defendant DaCosta was told by Glynn to deal with Salameh. DaCosta testified that Salameh said, "I'm not leaving my fucking brother." Also, DaCosta believed that Salameh was "highly intoxicated."

Defendant Police Officer Joe Zepeda was the jailor at police headquarters when plaintiffs arrived. He was not involved in the arrests. When Zepeda first saw plaintiffs, he noticed the "shorter one" - that is, Jereis - had an injury to his eye.

Plaintiffs were each issued a violation for disorderly conduct. After a non-jury trial before Judge Jo Ann Friia, City Court Judge for the City of White Plains, the charges against plaintiffs were dismissed. Specifically, Judge Friia found that the prosecution had failed to prove beyond a reasonable doubt that the noise coming from the Hattar brothers rose to the level of "causing public inconvenience, annoyance, or alarm."

DISCUSSION

A motion for summary judgment must be granted if the pleadings, discovery materials before the court, and any affidavits show that there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A dispute regarding a material fact is genuine if there is sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981).

If a nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323. If the nonmoving party submits evidence which is "merely colorable," legally sufficient opposition to the motion for summary judgment is not met. Anderson v. Liberty Lobby, 477 U.S. at 249. The mere existence of a scintilla of evidence in support of the nonmoving party's position is likewise insufficient; there must be evidence on which the jury could reasonably find for him. See Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).

On summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

I. Claims Against City of White Plains Police Department

Defendants first move for summary judgment on all claims asserted against defendant "White Plains Police Department." Under New York law, a municipal police department has no separate legal identity apart from the municipality which created it. Therefore, it cannot be sued. See Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002); Baker v. Willett, 42 F. Supp. 2d 192, 197 (N.D.N.Y. 1999) ("A police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity."). Accordingly, plaintiffs' claims against the White Plains Police Department are dismissed.

II. Plaintiffs' Excessive Force Claim

Defendants move for summary judgment on plaintiffs' excessive force claim. To determine whether police officers have used excessive force, the Court considers whether the force was reasonable in light of the circumstances and facts there and then confronting the police officers. The Court's assessment may include the following factors: the severity of the crime at issue; whether the suspect posed an immediate threat to the officers or others; and whether the suspect was resisting arrest or attempting flight to evade arrest. Graham v. Connor, 490 U.S. 386, 396 (1988). These factors should be considered without regard to the officers' underlying intent or motive. Papineau v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). Furthermore, "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97. The reasonableness of the force used should be assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. A plaintiff can recover on an excessive force claim when the force used is excessive and unreasonable, even if the injury is not severe or permanent. Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987). Whether an officer's actions constitute excessive force is a question for the jury to decide. Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999).

Defendants argue plaintiffs' excessive force claims are deficient because plaintiffs cannot identify any specific individual officer who used excessive force. Indeed, Jereis could not identify who the police officers were who allegedly used excessive force against him. This is ultimately a credibility issue for the jury to determine and is not fatal to plaintiffs' claims. There are questions of fact regarding when Jereis was injured and by whom which preclude the entry of summary judgment.

Because the presence of material issues of facts on plaintiffs' excessive force claim precludes the summary judgment, the Court similarly denies summary judgment on plaintiffs' assault and battery claims. See Kramer v. City of New York, 2004 U.S. Dist. LEXIS 21914, at *33-34 (S.D.N.Y. Nov. 1, 2004); accord Humphrey v. Landers, 344 Fed. App'x 686, 688 (2d Cir. 2009) ("Except for § 1983's requirement that the tort be committed under color of state law, the essential elements of excessive force and state law assault and battery claims are substantially identical.").

The Court must next address whether defendants' actions are protected by qualified immunity. Qualified immunity shields government officials whose conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The scope of qualified immunity is broad, and it protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). A qualified immunity defense is established where "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).

The doctrine of qualified immunity recognizes that "reasonable mistakes can be made as to the legal constraints on particular . . . conduct." Saucier v. Katz, 533 U.S. 194, 205 (2001). Qualified immunity applies if the officer's mistake as to what the law requires is reasonable. Id. It does not apply if, on an objective basis, it is obvious that no reasonably competent officer would have taken the actions of the alleged violation. Malley v. Briggs, 475 U.S. at 341. The Court cannot conclude that defendants are protected by qualified immunity because disputed issues of fact prevent the Court from evaluating whether the officers' actions were objectively reasonable.

III. Plaintiff's Monell Claim

Defendants also move for summary judgment on plaintiffs' claims against the City of White Plains, contending that plaintiffs have failed to establish a Monell claim against the City. A municipality is liable for a deprivation of a citizen's rights pursuant to 42 U.S.C. § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [for which] the government as an entity is responsible . . . ." Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978). A municipality may be held liable for inadequate training, supervision, or hiring where the failure to train, hire, or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Plaintiffs assert the City of White Plains should be liable under Monell because the City acted with "callous, reckless and deliberate indifference" to plaintiffs' constitutional rights in failing to "adequately discipline, sanction, train, retrain, investigate, supervise or otherwise" direct its police officers on how to properly act. Plaintiffs also assert claims regarding their prosecution.

Plaintiffs do not specifically identify any official policy or custom leading to their injuries. Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006) ("[A]t the summary judgment stage, plaintiffs must identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation."). Therefore, summary judgment is appropriate in the City's favor on plaintiffs' Monell claim.

IV. Plaintiff's Negligence Claim

Finally, defendants seek summary judgment on plaintiffs' negligent hiring, training, and retention claim.

Negligent hiring and retention requires a showing that an employer "failed to investigate a prospective employee notwithstanding knowledge of facts that would lead a reasonably prudent person to investigate that prospective employee." Biggs v. City of New York, 2010 U.S. Dist. LEXIS 121332, at *34 (S.D.N.Y. Nov. 16, 2010). Plaintiffs have failed to adduce any evidence that defendants improperly investigated any individual defendant when he was hired. Therefore, plaintiffs' claim for negligent hiring and retention is dismissed.

A claim for negligent training requires evidence of "deficiencies in the training of employees that, if corrected, could have avoided the alleged harm." Carter v. Port Auth. of N.Y. & N.J., 2004 U.S. Dist. LEXIS 25633 (S.D.N.Y. Dec. 17, 2004); see also Barr v. Albany County, 50 N.Y.2d 247, 258 (1980). There being no evidence to support this claim, summary judgment is granted on this claim.

V. Claims Against Defendant Zepeda

Defendants move for summary judgment on the claims against defendant Zepeda on the grounds that (1) Zepeda is entitled to qualified immunity for any action he may have taken; and (2) there is no evidence of his involvement in any unconstitutional use of force. The evidence indicates Zepeda's involvement in the actions underlying this case was limited to being the jailor at the White Plains Police Station when plaintiffs arrived. There is no evidence that he struck either plaintiff; he simply observed that Jereis had an eye injury. All claims against Zepeda are dismissed.

VI. Plaintiff Salameh's Claims

With respect to defendants' motion for summary judgment as to plaintiff Salameh's claims, Salameh has not presented any facts in opposition that would be admissible at trial showing that he was injured by any police action or was the recipient of excessive force. No one with personal knowledge testified that Salameh was hit or beaten by police officers or that excessive force was used against him during his arrest. At his deposition, Jereis testified that Salameh was struck by "sticks" and his knee was injured. When asked how he knew this, Jereis responded that Salameh had told him. The evidence regarding any force upon Salameh is thus based on hearsay and is inadmissible on summary judgment. See Murray v. Carroll, 2008 U.S. Dist. LEXIS 52236, at *10 (D. Conn. July 8, 2008); Fed. R. Civ. P. 56(c); Local Civil Rule 56.1(d). Accordingly, Salameh's excessive force and assault and battery claims are dismissed.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment (Doc. #40) is GRANTED as to (1) plaintiffs' claims against defendant "White Plains Police Department"; (2) plaintiffs' Monell claim against defendant City of White Plains; (3) plaintiffs' claim for negligent hiring, retention, and training; (4) all claims against defendant Zepeda; and (5) all claims asserted by plaintiff Salameh Hattar. The motion is DENIED as to plaintiff Jereis Hattar's excessive force, assault, and battery claims against the individual defendants (other than Zepeda).

The Clerk is instructed to terminate the pending motion and to terminate Salameh Hattar as a plaintiff and the City of White Plains, the White Plains Police Department, and Zepeda as defendants in this matter.

Counsel are directed to attend a final pretrial conference on January 25, 2012, at 10:30 a.m.

The parties are directed to submit a joint pretrial order in accordance with the Court's Individual Practices by no later than February 10, 2012. Dated: January 11, 2012

White Plains, New York

SO ORDERED:

/s/_________

Vincent L. Briccetti

United States District Judge