Opinion
115360/2006
04-27-2016
Mia Henderson-Jones, Individually, and MIA HENDERSON-JONES, as Mother and Natural Guardian of E.J., an Infant, Plaintiffs, v. City of New York, RAYMOND W. KELLY, as Police Commissioner of the City of New York, DETECTIVE SIERRA, BADGE NUMBER 2489, FEMALE DETECTIVE, BADGE NUMBER 18599, and SGT. JOHN VAN ORDEN, , Defendants.
I.PROCEDURAL BACKGROUND
Plaintiffs sue for injuries from the New York City Police Department's execution of a search warrant at plaintiffs' apartment October 27, 2005. Defendant Van Orden of the Police Department moves pursuant to C.P.L.R. § 5015(a)(1) to vacate a default judgment on his liability first entered against unidentified defendant Detective No.3 November 7, 2007 (Feinman, J.). C.P.L.R. § 3215. In an order dated April 7, 2007, Justice Feinman had permitted plaintiff to serve Detective #3 through the Police Commissioner and the City's Corporation Counsel. C.P.L.R. § 308(5). See Henderson-Jones v. City of New York, 87 AD3d 498, 500 (1st Dep't 2011). Detective #3, through the Corporation Counsel, opposed plaintiffs' motion for a default judgment against him. Therefore, since the court did not grant the default judgment upon his default in opposing the motion, C.P.L.R. § 5015(a)(1) is unavailable to him as a basis for vacating the judgment. Van Orden needed to avail himself of C.P.L.R. § 5015(a)(2), (3), (4), or (5) or to appeal the judgment, but pursued none of these remedies. Moreover, he must show that his motion to vacate the judgment pursuant to § 5015(a)(1) is within one year after service of notice of entry of the judgment.
Even were the court to consider Van Orden's motion pursuant to one those alternative provisions of C.P.L.R. § 5015(a), such a motion still must be served within a reasonable time after the judgment was entered. Nash v. Port Auth. of NY & N.J., 22 NY3d 220, 225 (2013); Mark v. Lenfest, 80 AD3d 426, 426 (1st Dep't 2011); Maspeth Fed. Sav. & Loan Assn. v. Sloup, 123 AD3d 672, 674 (2d Dep't 2014); City of Albany Indus. Dev. Agency v. Garg, 250 AD2d 991, 994 (2d Dep't 1998). Van Orden's identity was known at least by June 8, 2008, when Van Orden was deposed with representation by the Corporation Counsel, but he did not move to vacate the default judgment against him as the identified Detective #3. Nor did he do so when the Corporation Counsel formally served a notice of appearance for Van Orden July 6, 2009. In 20ll, the Appellate Division, First Department, permitted substitution of Van Orden for Detective #3 and observed that he was permitted to move to vacate the default judgment against Detective #3, but he still did not do so. Henderson-Jones v. City of New York, 87 AD3d at 500-501, 506.
Upon remand, the court (Kern, J.) granted the default judgment on liability, previously awarded to plaintiffs against Detective #3, against Van Orden. On January 11, 2012, plaintiffs served the judgment against Van Orden with notice of entry on the Corporation Counsel who had appeared for him. Over three more years elapsed, when he still did not move to vacate the default judgment.
II.GROUNDS FOR VAN ORDEN'S CURRENT MOTION
Now, Van Orden ignores his unreasonable lateness and simply urges that the default judgment against him be vacated in the interests of justice because his employer, defendant City, answered timely and will be liable for his unlawful acts or omissions that Justice Feinman found Van Orden had committed when the court originally granted the default judgment. C.P.L.R. § 3215(f). See Nash v. Port Auth. of NY & N. J., 22 NY3d at 226; Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 (2003); Goldman v. Cotter, 10 AD3d 289, 293 (1st Dep't 2004); Appalachian Ins. Co. v. General Elec. Co., 8 AD3d 109, 109 (1st Dep't 2004). Plaintiffs, however, seek damages pursuant to 42 U.S.C. § 1983, for defendants' violations of federal law. Defendant City may not be held liable for damages under § 1983 if they are caused by a City employee's isolated acts or omissions. Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 405 (1997); Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992); Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).
The City may be held liable for Van Orden's violations of federal law only if plaintiffs establish that a policy, custom, or usage of the City or its Police Department produced Van Orden's deprivation of plaintiffs' federal rights. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Ramos v. City of New York, 285 AD2d 284, 302 (1st Dep't 2001). This standard imposes on plaintiffs a heavy burden of proof, met only by systemic evidence that was unnecessary and would be unnecessary, were the court to vacate the default judgment, to establish liability against Van Orden individually.
Plaintiffs would need to demonstrate that Police Department officers' unlawful practices, in depriving plaintiffs of federal rights, were so well ingrained or so persistent and widespread that City policymaking officials constructively acquiesced in those practices. Connick v. Thompson, 563 U.S. 51, 60-61 (2011); Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. at 404; Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). If plaintiffs demonstrated that the unlawful practices had become the Police Department's standard operations, the City's failure to train or supervise its officers, so that they conducted their operations lawfully, might amount to the City's deliberate indifference to its officers' deprivation of federal rights, subjecting the City to liability. Connick v. Thompson, 563 U.S. at 61; City of Canton v. Harris, 489 U.S. at 388; Bumbury v. City of New York, 62 AD3d 621, 622 (1st Dep't 2009); Ramos v. City of New York, 285 AD2d at 304. The default judgment against Van Orden relieves plaintiffs of this burden for purposes of recovering against him.
Having obtained a default judgment against Detective #3, learned his identity, and observed that the City was defending him, plaintiffs had no need, during the long history of their disclosure efforts that ensued, to uncover the systemic evidence outlined above. Nothing in the record of this motion indicates that plaintiffs sought or obtained evidence that their injuries from police officers' execution of a search warrant at their apartment was the product of a City policy, custom, usage, or ingrained, persistent, or widespread practice in which policymaking officials acquiesced. Nor does anything indicate that plaintiffs sought or obtained evidence of Van Orden's unlawful conduct being part of the Police Department's standard operations, resulting from its failure to train or supervise its officers in lawful operations, such that the City would share liability for an individual officer's conduct. Although plaintiffs more recently obtained a judgment on the City's liability, it does not include vicarious liability for Van Orden's violation of federal law, to which vicarious liability does not apply.
Moreover, as long as Van Orden's unlawful conduct was in the course of his employment and not in violation of any Police Department rule, indemnification by his employer protects him from personal financial exposure. NY Gen. Mun. Law § 50-k; Thomas v. New York City Dept. of Educ., 96 AD3d 401, 402 (1st Dep't 2012); Harris v. City of New York, 30 AD3d 461, 464-65 (2d Dep't 2006). See Salino v. Cimino, 1 NY3d 166, 171-72 (2003). This protection holds true whether or not Van Orden's conduct was a product of a City policy, custom, usage, or practice or was part of the Department's standard operations, produced by its lack of training or supervision. Van Orden also may contest the extent of plaintiffs' damages by cross-examining their witnesses and presenting evidence regarding mitigation. Amusement Business Underwriters v. American Intl. Group, 66 NY2d 878, 880 (1985); Rokina Opt. Co. v. Camera King, 63 NY2d 728, 730-31 (1984); Henderson-Jones v. City of New York, 120 AD3d 1123, 1124 (1st Dep't 2014); Ruzal v. Mohammed, 283 AD2d 318, 319 (1st Dep't 2001). Given all the opportunities, in fact invitations, afforded Van Orden between 2007 and 2013 to seek to reverse or vacate the judgment against him, as set forth above, and given his protection from personal financial exposure, his failure to avail himself of the applicable avenues for relief well may be construed as a tactical choice. Koppell Riv. Realty, Inc., 85 AD3d 520, 521 (1st Dep't 2011).
Finally, even were the court to consider Van Orden's motion to vacate the judgment against him pursuant to C.P.L.R. § 5015(a)(1), despite it having been granted over his opposition, and despite his motion's untimeliness, the motion does not set forth a meritorious defense. Only in reply does he for the first time offer co-defendant Sierra's deposition testimony that plaintiff Henderson-Jones invited the police officers executing the search warrant into plaintiffs' apartment, and the officers conducted a cursory search that revealed a marijuana cigarette in plain view. Sylla v. Brickyard Inc., 104 AD3d 605, 606 (1st Dep't 2013); Calcano v. Rodriguez, 103 AD3d 490, 491 (1st Dep't 2013); Martinez v. Nguyen, 102 AD3d 555, 556 (1st Dep't 2013); JPMorgan Chase Bank, N.A. v. Luxor Capital, LLC, 101 AD3d 575, 576 (1st Dep't 2012). Even were the court to consider this belated evidence, it fails to support a defense to plaintiffs' claims that Henderson-Jones was charged with possession of marijuana in a public place; threatened with the loss of her apartment and children; threatened by Van Orden's subordinate officer pointing a gun at her, in his presence; and subjected to two body cavity searches. Henderson-Jones v. City of New York, 87 AD3d at 499.
III.CONCLUSION
For all these reasons, defendant Van Orden's motion pursuant to C.P.L.R. § 5015(a)(1) to vacate the default judgment on his liability is unreasonably late and lacking in grounds for such a belated vacatur. Therefore the court denies his motion. DATED: April 27, 2016 _____________________________ LUCY BILLINGS, J.S.C.