MEMORANDUM AND ORDER

I. LEO GLASSER, Senior District Judge

Defendants previously moved for summary judgment, which after oral argument was granted in part and denied in part by a memorandum and order dated June 24, 2003 (the "Order"). Summary judgment was granted with regard to the individual defendants on all claims except for UC-7064, Trentacosta, Ryan and Robinson, for whom summary judgment was only granted on the state law claims of intentional infliction of emotional distress, negligent hiring and retention, and negligent training and supervision. Based in part on plaintiff's tacit admission in briefing and explicit admission at oral argument that there was no evidence of a custom or policy by which defendant City of New York could be held liable for the officers' purported 1983 violations as required by Monell v. Dep't of Social Services, 436 U.S. 658 (1978), summary judgment was also granted to the City of New York, but the Order did not specify precisely on which claims summary judgment was granted.

By letter dated July 2, 2003, plaintiff seeks clarification of the Order, noting that although the Order explicitly addressed the federal § 1983 claims based on false arrest and malicious prosecution, it did not specifically address similar state law claims of false arrest, false imprisonment and malicious prosecution set forth in the Complaint at paragraphs 64 through 96. Plaintiff requests that "the Court clarify that it intended to deny summary judgment on these parallel state claims as well," specifically with regard to the City of New York.

Defendants did not file a response to plaintiff's request. After reviewing the prior motion and accompanying papers in support and opposition as well as the Order itself, plaintiff is correct that the prior Order should be clarified.

Defendants' motion raised six arguments in favor of granting summary judgment, namely that: (1) probable cause existed for the arrest and prosecution and thus the claims of false arrest or malicious prosecution failed, (2) the individual officers were entitled to qualified immunity, (3) no evidence existed to link defendants Bobbett, Murray, Cummings and Povermo to the alleged claims. (4) no evidence existed to show that the City of New York had an unconstitutional policy or practice as required by Monell, (5) if all federal claims were dismissed, the court should decline to exercise supplemental jurisdiction over the remaining state law claims, and (6) even if the court retained jurisdiction over the state law claims, no evidence existed to establish the state law claims of intentional infliction of emotional distress, negligent hiring and retention, and negligent training and supervision. This court ruled on the motions by determining (1) that genuine issues of material fact precluded summary judgment on the question of probable cause, (2) similar issues of fact precluded summary judgment based on qualified immunity. (3) as plaintiff conceded, no evidence existed regarding the other individual officers, (4) as plaintiff conceded, there was no evidence of a custom or policy to hold the City of New York liable under Monell and (5) that since there was no evidence to establish the state law claims of intentional infliction of emotional distress, negligent hiring and retention, and negligent training and supervision, summary judgment was appropriate on those claims. (Since federal claims remained, defendants' conditional request to dismiss the remaining state law claims was moot and left unmentioned in the Order.)

As is evident by this recitation of the arguments presented, at no point did defendants argue specifically that summary judgment was warranted with regards to the state law claims of false arrest, false imprisonment or malicious prosecution. Nor did this court intend to rule upon those claims, with one exception — the individual defendants Bobbett, Murray, Cummings and Povermo, as against whom plaintiff conceded no evidence existed to establish any claim.

As for the City of New York's liability, the lack of custom or policy for purposes of § 1983 liability has no effect on liability under state law for the actions of the remaining officer defendants. Plaintiff is correct that under New York law, the City of New York would be vicariously liable for the actions of the remaining defendants (its employees) as long as the conduct alleged was within the scope of their employment, a fact which seems uncontested but on which plaintiff will have the ultimate burden of proof. See McDowell v. City of New York, 208 A.D.2d 507, 616 N.Y.S.2d 788, 789 (2d Dep't 1994).

Therefore, the Order is clarified as follows:

Summary judgment is granted to all defendants on the state law claims of intentional infliction of emotional distress, negligent hiring and retention, and negligent training and supervision. Summary judgment is granted to defendants Bobbett, Murray, Cummings and Povermo on all claims. Summary judgment for the City of New York is granted as to the federal § 1983 claims, but denied as to the state law claims of false arrest, false imprisonment, and malicious prosecution. Summary judgment for defendants UC-7604, Robinson, Trentacosta and Ryan is denied as to both the federal § 1983 claims and the state law claims of false arrest, false imprisonment, and malicious prosecution. The court will continue to assume supplemental jurisdiction over the state law claims of false arrest, false imprisonment and malicious prosecution against UC-7604, Robinson, Trentacosta and Ryan, and the City of New York.