Opinion
21 Civ. 3835 (AT) (GWG)
12-05-2023
BENJAMIN SAMUEL RICH, formerly known as Samuel Guillaume Plaintiff, v. STATE OF NEW YORK et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Benjamin Samuel Rich, proceeding pro se, brought this action under 42 U.S.C. § 1983 against New York Police Department (“NYPD”) Detectives Michael Miller and Vincent Corrando, alleging that they violated Rich's civil rights in relation to Rich's arrest and prosecution, which resulted in his imprisonment and the seizure of his vehicle. See First Amended Complaint, filed May 4, 2022 (Docket # 55) (“FAC”). Miller and Corrando now move for summary judgment on the ground that Rich previously released the defendants from any such claim. For the reasons that follow, the motion for summary judgment should be denied.
Motion for Summary Judgment, filed July 19, 2023 (Docket # 121) (“Mot.”); Rule 56.1 Statement, filed July 19, 2023 (Docket # 122) (“R. 56.1 Statement”); Declaration of Felix De Jesus, filed July 19, 2023 (Docket # 123) (“De Jesus Decl.”); Memorandum of Law in Support, filed July 19, 2023 (Docket # 124) (“Mem.”); Memorandum of Law in Opposition, filed Aug. 2, 2023 (Docket # 127) (“Opp.”); Declaration of Benjamin Rich, filed Sept. 14, 2023 (Docket # 129) (“Rich Decl.”); Reply, filed Oct. 6, 2023 (Docket # 130) (“Reply”); Plaintiff's Response to Defendant's Reply, filed Oct. 13, 2023 (Docket # 131).
I. BACKGROUND
A. Factual Background
We recount here the undisputed facts:
The first amended complaint alleges that Rich was falsely arrested on January 27, 2016. See FAC ¶¶ 13-84. His arrest was related to a shooting that occurred on January 6, 2016, at the Highline Ballroom, a nightclub in Manhattan, and a subsequent car chase. See id. Following a motion to dismiss, the only remaining defendants are NYPD detectives Miller and Corrando. Id. ¶¶ 9-10; Notice of Voluntary Dismissal, filed July 5, 2022 (Docket # 77); Order, filed July 7, 2022 (Docket # 78).
The instant motion focuses on two documents that relate to an entirely different case that was filed by the plaintiff using another name: Samuel Guillaume v. The City of New York, Index No. 159617/2016 (“Guillaume I”). That case was filed on November 15, 2016, in the Supreme Court of the State of New York, County of New York. See Summons and Complaint, annexed as Ex. A to De Jesus Decl. (Docket # 123-1) (“2016 Summons and Complaint”); R. 56.1 Statement ¶ 1. The complaint in that case alleges that plaintiff was injured while detained at the Manhattan Detention Complex on White Street (commonly referred to as “the Tombs”) when “an employee of the defendant THE CITY OF NEW YORK caused the plaintiff to be injured by striking him with a door controlled by said employee.” 2016 Summons and Complaint ¶¶ 7, 14. The complaint alleges that the City of New York is liable for negligence. Id. ¶¶ 13, 15.
On November 23, 2022, the parties agreed to amend the caption of the case to identify the plaintiff as “Benjamin Samuel Rich.” See Stipulation to Amend Caption, annexed as Ex. D to De Jesus Decl. (Docket # 123-4) (“Stipulation to Amend Caption”). The Stipulation to Amend Caption was signed by Frekhtman, Rich's attorney. Id. The document affirmed that “[d]espite the error in the caption, the undersigned parties still intend to be bound by the October 12, 2021 stipulation and proceed with the settlement . . . .” Id.
Many years after Guillaume I was filed, two documents were signed bearing the caption of that case. These documents are (1) a Stipulation of Settlement, annexed as Ex. B to De Jesus Decl. (Docket # 123-2) (“Stipulation of Settlement”); and (2) a General Release, annexed as Ex. C to De Jesus Decl. (Docket # 123-3) (“General Release”).
The Stipulation of Settlement shows a signature date of October 12, 2021. See Stipulation of Settlement at 3; R. 56.1 Statement ¶ 3. The Stipulation of Settlement is signed by Arkady Frekhtman of Frekhtman & Associates. Id. Frekhtman was Rich's counsel of record in Guillaume I, as evidenced by his signature appearing on the 2016 Summons and Complaint. See 2016 Summons and Complaint at 1; see also Mem. at 6. It bears a filing date of November 23, 2022. See Stipulation of Settlement at 1. The Stipulation of Settlement provides that:
Additionally, at a hearing held on May 19, 2023, Rich stated: “I still do have this attorney, Mr. Frekhtman, as my attorney” in Guillaume I. Transcript, filed May 26, 2023 (Docket # 117), at 11.
IT IS FURTHER STIPULATED AND AGREED that plaintiff(s) shall complete and deliver to the City, the following City of New York documents: 1) Stipulation of Discontinuance with Prejudice, 2) a General Release to the City, its past/present officers, managers, administrators, employees, agents, representatives, and all other individually named defendants and entities represented and/or indemnified by the City of New York, 3) a Plaintiff's Affidavit of Liens, 4) an Affidavit of Status of Attorney's Liens that includes, if applicable, a release/discharge of attorney's liens, 5) an IRS W-9 Form, and 6) any other documents that may be necessary for processing payment.Stipulation of Settlement at 2.
The other document at issue is the General Release, which bears a signature date of September 27, 2022 - nearly one year after the Stipulation of Settlement was signed. General Release at 2. Plaintiff is the only party whose signature purportedly appears on that document. Id. Plaintiff's signature is notarized. Id. The General Release provides that for consideration of $25,000, plaintiff agreed to
release and forever discharge the City of New York, and all past and present officers, directors, managers, administrators, employees, agents, assignees, lessees, and representatives of the City of New York, and all other individually named defendants and entities represented and/or indemnified by the City of New
York, collectively the ‘RELEASEES', from any and all state and federal tort claims, causes of action, suits, occurrences, and damages, whatsoever, known or unknown, including but not limited to state and federal civil rights claims, actions, and damages, which RELEASOR had, now has, or hereafter can, shall, or may have, either directly or through subrogees or other third persons, against the RELEASEES for, upon or by reason of any matter, cause, or thing whatsoever that occurred through the date of this RELEASE.Id. at 1. While the General Release provides spaces to fill in any “outstanding actions” that are excluded from the release, that space has been left blank in the document. Id.
On January 30, 2023, a check made out to plaintiff and Frekhtman & Associates, plaintiff's counsel of record, was issued in the amount of $20,097.52. See Printout of Paid Check, annexed as Ex. F to De Jesus Decl. (Docket # 123-6).
B. History of Defendants' Motion for Summary Judgment
On January 3, 2023, defendants filed an initial motion for summary judgment. See Motion for Summary Judgment, filed Jan. 3, 2023 (Docket # 95). When plaintiff failed to respond to the motion, the Court afforded plaintiff additional time to respond. See Order, filed Feb. 16, 2023 (Docket # 101). After plaintiff filed a response to the motion, see Plaintiff's Response in Opposition to Summary Judgment, filed Mar. 1, 2023 (Docket # 102), the Court ordered plaintiff to submit a sworn statement “directly address[ing] the issue of whether he signed the document identified as a ‘General Release,'” Order, filed Mar. 28, 2023 (Docket # 104). Plaintiff provided two notarized “affidavits of truth” dated March 2, 2023, and April 14, 2023. See First Affidavit of Truth, filed Apr. 14, 2023 (Docket # 105) (“First Affidavit of Truth”); Second Affidavit of Truth, filed Apr. 20, 2023 (Docket # 107) (“Second Affidavit of Truth”).
In the first “affidavit of truth,” plaintiff asserted as follows:
I Benjamin Samuel Rich, (FKA) Samuel Guillaume, declare that I did not sign any accident settlement agreement with New York City or THE STATE OF NEW
YORK in the matter regarding my 2016 DOC injury. I have been incarcerated in a Pennsylvania State Prison since September 13th, 2022. Those settlement documents were signed infront [sic] of a Notary-Public on or around September 27th, 2022. Today is March 2nd, 2023, and still I have not seen what the settlement documents look like or what it contains. In addition, I did not receive any form of compensation from New York City or New York State in result of those documents being signed. I was unaware of the existance [sic] of those documents. I didn't authorize my Attorney or anyone to sign and process those documents on my behalf.First Affidavit of Truth at *3.
“* ” indicates the page number supplied by the ECF system.
In the second “affidavit of truth,” plaintiff asserted as follows:
I, Benjamin Rich, F.K.A. Samuel Guillaume, Declare I did not sign the accident settlement/general release document/forms affiliated with New York City or New York State, in front of a Notary Public officer on September 27, 2022, in Brooklyn New York. I have been in the custody of the Commonwealth of Pennsylvania Department of Corrections since September 13, 2022. I have been incarcerated ever since. Therefore, I could not have been present on that day to sign the general release document provided by Freckman [sic] and Associates Law Firm.Second Affidavit of Truth at *1.
Because the Court found these filings to be confusing in their wording, it scheduled a telephonic hearing. See Order, filed Apr. 24, 2023 (Docket # 110). The hearing was held on May 19, 2023. See Docket Entry dated May 19, 2023; Transcript, filed May 26, 2023 (Docket # 117) (“Tr.”). At the hearing, Rich appeared pro se and Assistant Corporation Counsel Felix Octavio De Jesus appeared for defendants. Tr. 1. The Court placed Rich under oath. Tr. 4:1-4. The Court then inquired as to whether Rich had seen the General Release. Tr. 4:6-10. Rich claimed that he had never seen the General Release “up until today,” Tr. 4:11-12, and later stated that he assigned power of attorney to Alicia Lyons, Tr. 7:9-10, who was “handling” his legal filings, see Tr. 20:2-9 (“Like I said, I have someone taking care of this. I'm not even writing my own motions. I have a paralegal who's assisting my Power of Attorney to do that. So when I sent that document, she attached [the General Release] to that motion, and then they filed it on my behalf. So I've never seen it.”). The Court questioned Rich on whether he had previously ever assigned power attorney to anyone other than Lyons. Tr. 8:16-18. Rich indicated that while he had previously signed a power of attorney to Nadine Rich, his estranged ex-wife, “[i]t was ineffective because I didn't have witnesses.” Tr. 8:19-23. He further indicated that he never gave Nadine Rich permission to sign any settlement document. Tr. 22:7. Regarding the settlement of the case more broadly, Rich stated that he was never aware that the case settled, Tr. 13:11-12 (“I knew I didn't settle it.”); that he had never received the $25,000 settlement amount, Tr. 13:25-14:1 (“No, I didn't receive not a penny.”); and that he was incarcerated when the General Release was allegedly signed in Brooklyn, Tr. 12:19-20 (“I was in the custody of the Pennsylvania DOC.”).
At the hearing, defendants withdrew their pending motion for summary judgment, and later filed the instant motion. Tr. 25:11-26:20.
II. LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986)); Celotex, 477 U.S. at 322 (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citations omitted); see also Fed.R.Civ.P. 56(c)(4) (parties shall “set out facts that would be admissible in evidence”).
In determining whether a genuine issue of material fact exists, “[t]he evidence of the nonmovant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial, '” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e)), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor,” Anderson, 477 U.S. at 256, and “[a] party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory,” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). “Where it is clear that no rational finder of fact ‘could find in favor of the nonmoving party because the evidence to support its case is so slight,' summary judgment should be granted.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)).
Rich is proceeding pro se and thus we must liberally construe his filings to raise “the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (punctuation omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).
III. DISCUSSION
The City has offered no evidence from anyone with personal knowledge as to what transpired with respect to the signing of the Stipulation of Settlement, the signing of the General Release, the notarization of plaintiff's signature on the General Release, the existence of a power of attorney, whether any individual with a power of attorney conveyed to plaintiff's attorney that plaintiff was authorizing a settlement, whether plaintiff gave authority to some other individual to sign the General Release, or anything else relevant to plaintiff's unequivocal sworn testimony that he did not authorize a settlement or sign the General Release. The Court is aware of no effort that the City has made to subpoena deposition testimony from Arkady Frekhtman, who is presumably a person with firsthand knowledge of all these matters. Essentially, the City's factual contentions rest entirely on the fact that the Stipulation of Settlement is signed by plaintiff's attorney and that the General Release bears the purported signature of plaintiff. The City does not contest that the plaintiff was incarcerated on the date the General Release was signed and offers no factual scenario as to how the purported signature of plaintiff was affixed to the General Release.
For his part, plaintiff has repeatedly asserted under oath that he did not authorize the settlement and did not sign the General Release. See First Affidavit of Truth at *3; Second Affidavit of Truth at *1; Tr. 11:20-12:1; Rich Decl. ¶¶ 5-6. He also states that he was incarcerated on the date the General Release was signed and that he did not receive any proceeds of the settlement. See First Affidavit of Truth at *3; Second Affidavit of Truth at *1; Tr. 12:1920; Rich Decl. ¶¶ 5-6.
While the declaration is missing the language required by 28 U.S.C. § 1746, plaintiff made the same sworn statement in his notarized “Affidavits of Truth” and in his sworn testimony at the hearing.
Rich also indicates in his papers that Nadine Rich, plaintiff's ex-wife, signed the General Release on his behalf and did so without a valid power of attorney, Opp. at 5, though at the same time he states that he “does not know who signed the General Release on his behalf,” id. at 6. Plaintiff states that he asked another individual to file a police report asserting that Nadine Rich “committed forgery by signing the General Release in front of a Notary Public in New York City” and that she obtained funds (presumably from the settlement payment) from “a check in the name of Benjamin Rich.” Id. at 7. Rich attaches a copy of the police report, which refers to the report having been made on May 10, 2023. See Opp. at *12-13. We do not consider these assertions, however, as they are not made under oath and plaintiff was specifically informed that any factual statements had to be submitted to the Court in the form of a sworn statement. See Order, filed Aug. 31, 2023 (Docket # 128).
The City's first argument is that Frekhtman “acted with full authority to enter into a binding settlement agreement on plaintiff's behalf.” Mem. at 5 (capitalization omitted). The plaintiff has disputed this contention, however. See First Affidavit of Truth at *3; Second Affidavit of Truth at *1; Tr. 14:10-24; Rich Decl. ¶¶ 5-6. The City argues that the signing of the Stipulation of Settlement by the attorney “conclusively demonstrates” that plaintiff agreed to the settlement. Mem. at 9. But as defendants themselves recognize, the decision to settle claims “rests with the client” not the attorney. See Mem. at 5 (citing Gomez v. City of New York, 805 F.3d 419, 424 (2d Cir. 2015)). Defendants cite no authority to support the notion that the mere signing of a stipulation of settlement by an attorney “conclusively” shows that the client gave authority to the attorney regardless of sworn testimony showing otherwise. Given plaintiff's unqualified assertion that he did not authorize his attorney to settle, the defendants' first argument must be rejected as it rests on a disputed issue of material fact. See Rankin v. City of Niagara Falls, 2012 WL 1565660, at *3 (W.D.N.Y. May 2, 2012) (finding a “factual dispute” after “[p]laintiff [] submitted ‘affirmative evidence' through his Affidavit stating that he did not authorize [his attorney] to discontinue the action.”) (internal citations omitted); Ghilduta v. Trump Corp., 2007 WL 9813779, at *3 (S.D.N.Y. Nov. 5, 2007) (“The Court finds that Plaintiff has met his burden of demonstrating that [his attorney] did not have actual authority to settle this case. The Court credits Plaintiff's contention that he did not know of or consent to any agreement to settle his claims against Defendants.”).
The City's second argument is that the General Release “bars plaintiff's claims in this action.” Mem. at 7 (capitalization omitted); accord id. at 10-12. The City is correct that the terms of the General Release bar plaintiff's claims - a matter that plaintiff himself does not dispute. The pertinent issue, however, is whether plaintiff has created a disputed issue of fact as to whether plaintiff signed or otherwise agreed to the General Release. As already noted, plaintiff has sworn that he did not sign it. Defendants make no argument that plaintiff's assertion, in combination with the other indicia that he did not sign the General Release (such as his incarceration), is insufficient to create a disputed issue of fact.
The defendants suggest that by denying that he signed the General Release, plaintiff is improperly citing to “parol evidence” or is “otherwise making arguments that are inadmissible” regarding the release. Mem. at 8-9. We reject these arguments inasmuch as plaintiff's arguments have nothing to do with efforts to interpret the language of the release. Plaintiff's arguments relate instead exclusively to whether the release had any legal effect due to it not being signed or authorized. While defendants cite to cases where the defendant actually signed a release, see, e.g., Lurch v. Lorenzana, 2018 U.S. Dist. LEXIS 200522, at *8-9 (S.D.N.Y. Aug. 30, 2018); Robinson v. Pierce, 2012 WL 833221, at *7 (S.D.N.Y. Mar. 13, 2012), such cases are irrelevant since plaintiff's contention is that he did not sign or authorize the signing of the General Release. Defendants cite no case law that would allow us to find that plaintiff could be bound by a General Release that plaintiff did not sign or authorize.
The defendants' final argument is that plaintiff has “waived” the ability to challenge the settlement because of his “delay in raising these issues.” Mem. at 12. This argument, however, is premised on the notion that plaintiff's attorney had “the authority to settle that matter [i.e., Guillaume I] on his behalf.” Id. As already shown, this is a disputed issue of fact.
Accordingly, the City's motion for summary judgment should be denied.
IV. CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment (Docket # 121) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).