Opinion
8694 Index 306697/14
03-14-2019
Joseph SMITH, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Apicella & Schlesinger, New York (Philip S. Schlesinger of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Apicella & Schlesinger, New York (Philip S. Schlesinger of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Acosta, P.J., Manzanet–Daniels, Kapnick, Kahn, Oing, JJ.
Judgment, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered March 20, 2018, to the extent appealed from as limited by the briefs, dismissing the 42 U.S.C. § 1983 claims, unanimously reversed, on the law, without costs, and the claims reinstated.
The complaint, as amplified by plaintiff's opposition papers, alleges that, on February 13, 2013, plaintiff and a friend, both black men, were driving in a luxury sports car in the Bronx. They were not driving recklessly or violating any traffic laws. Nevertheless, they were pulled over by the police, and five or six officers, including the individual defendants, removed them from the car and searched them and the car. The police found marijuana in the friend's pocket, but recovered no other contraband, either in the car or on plaintiff's person. Nevertheless, plaintiff was arrested and held for two days. Charges against him were dismissed in October 2013.
The complaint alleges further that, during this time period, the New York City Police Department employed a "stop and frisk" policy, pursuant to which every year the police stopped hundreds of thousands of overwhelmingly and disproportionately minority persons, including black men, and subjected them to searches, for no reason other than that they were in supposedly high-crime areas. The complaint alleges that the "stop and frisk" policy, rather than some constitutionally cognizable cause, was the reason plaintiff was detained, searched, and arrested. To prove the existence of this policy, plaintiff submitted, among other things, the New York City Bar Association's 24–page "Report on the NYPD's Stop-Frisk-Policy," dated May 2013, which examined the policy and made recommendations for its reform and the protection of city residents' civil liberties.
The foregoing states a cause of action under 42 U.S.C. § 1983 against the individual defendants (see Shelton v. New York State Liq. Auth., 61 A.D.3d 1145, 1148, 878 N.Y.S.2d 212 [3d Dept. 2009] ; Littlejohn v. City of New York, 795 F.3d 297, 314 [2d Cir. 2015] ). At this procedural juncture, it is not necessary for plaintiff to allege that any of the individual defendants did any more than participate in his unlawful arrest.
By alleging the existence of an extraconstitutional municipal "stop and frisk" policy, and that the individual defendants unlawfully arrested plaintiff pursuant to that policy, the complaint states a cause of action under 42 U.S.C. § 1983 against the City (see Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 694–695, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ; see also Ashcroft v. Iqbal, 556 U.S. 662, 678–681, 129 S.Ct. 1937, 173 L.Ed.2d 868 [2009] [setting forth federal pleading standards]; Cabrera v. City of New York, 2014 N.Y. Slip Op. 30533[U], 2014 WL 894434 [Sup. Ct., Bronx County 2014] [comparing federal and state pleading standards] ).
Defendants' contention that plaintiff has not pointed to any cognizable evidence that the stop and frisk policy even exists is without merit (see Floyd v. City of New York, 959 F.Supp.2d 540 [S.D. N.Y.2013] ).