Opinion
Index No. 157088/2015 Motion Seq. No. 010
07-15-2022
JUNMEI ZHANG, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, ACACIA NETWORK HOUSING, INC..BASIC HOUSING INC., Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
FRANCIS KAHN, III, A.J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 010) 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 432, 433 were read on this motion to/for DISMISS.
Upon the foregoing documents, the motion and cross-motion are determined as follows:
This action arises out of an incident that occurred on February 17, 2015, when Plaintiff, a New York City Police ("NYPD") officer, was accidently shot in the foot by his partner, a fellow officer, nonparty Philip Longo ("Longo"), when an unattended dog charged toward the officers. Plaintiff claims the incident occurred when he and Longo responded to a call at a building owned by Defendant City of New York ("City") and operated by Defendants New York City Department of Homeless Services ("NYCDHS"), Acacia Network Housing, Inc. ("Acacia"), and Basic Housing, Inc. ("Basic").
Plaintiff commenced this action and pled causes of action alleging negligence, negligent hiring, training and retention, strict liability for an animal with vicious propensities and under General Municipal Law §205-e. After all Defendants appeared and answered, a protracted discovery process began which is still unresolved over seven years later. Much of this fracas has centered on Plaintiffs demand for a deposition of Longo and production of his personnel file and disciplinary records from the New York City Police Department.
This action was originally only commenced against Defendant City. Plaintiff commenced another action against the other Defendants (NY Cty Index No 158952) which was consolidated herein by order of Justice Arlene Bluth (NYSCEF Doc No 60).
By order of this Court, dated June 1, 2020, the branch of Plaintiff s motion to compel Longo to appear for a deposition was granted. This Court reasoned that Longo "as primary agent of this unfortunate occurrence and an employee for whom Defendant City is ostensibly vicariously liable, possesses a unique perspective of the subject events and his testimony is not only material and necessary, but essential, to the prosecution of this case." However, this Court denied Plaintiffs demand for production of Longo's NYPD personnel file and disciplinary records based upon the application of Civil Rights Law §50-a and the cases interpreting same.
After Civil Rights Law §50-a was convincingly repealed as part of a package of law enforcement reforms that became effective on June 12, 2020, this Court, by order dated November 5, 2020, granted Plaintiffs motion for renewal and reargument and directed production of Longo's NYPD personnel file and disciplinary records without an in camera review. This Court also directed Longo be produced by Defendants for a deposition before January 29, 2021. Defendant City produced Longo for a deposition on February 4, 2021, but did not produce the disputed NYPD records. The Appellate Division, First Department affirmed this Court's order in its entirety (see Junmei Zhang v City of New York, 198 A.D.3d 504 [1st Dept 2021]). The First Department also rejected Defendant City's attack on the sufficiency of Plaintiffs pleading and held:
To the extent that the City defendants' argue that the officer was acting within the scope of his employment, and therefore plaintiffs claims of respondeat superior foreclose any claims based on negligent hiring, retention, or training, City defendants should have, but did not, move to dismiss these claims.(id. at 505 [citations omitted).
After the First Department issued its decision, Plaintiffs pending motion (Motion Seq No 9) to compel a further deposition of Longo and production of the NYPD records was resolved by stipulation, and so-ordered by this Court on October 26, 2021 (NYSCEF Doc No 385). Therein, the parties agreed Defendants would ''comply with the Court's Order dated November 9, 2020 and the Appellate Division Order dated October 14, 2021 with within 45 days including Police Officer Longo's personnel file; disciplinary records; civilian complaint records and evaluation records" and to produce Longo for a further deposition on or before January 14, 2022.
In lieu of complying with the stipulation, Defendants City and NYCDHS moved pursuant to CPLR §3211 [a] [7] to [1] dismiss Plaintiffs causes of action in negligence and negligent hiring, training and retention, [2] dismiss Defendant NYCDHS from this action and [3] issue a protective order directing Longo and his NYPD records are not discoverable. Plaintiff opposed the motion and cross-moved for an order [1] striking Defendant City's answer pursuant to CPLR §3126 and [2] to amend the complaint to substitute Defendant City in the place and stead of NYCDHS. Defendants opposed the cross-motion.
As for the branch of Defendants' motion to dismiss Plaintiffs causes of action sounding in negligence and negligent hiring, training and retention, a motion pursuant to CPLR §3211[a][7] may be made at any time (see CPLR §3211 [e]; M & E 73-75, LLC v 57 Fusion LLC, 189 A.D.3d 1, 6 [1st Dept 2020]). On such a motion, the allegations contained in the complaint must be presumed to be true, liberally construed and a plaintiff must be accorded every possible favorable inference (see eg. Chanko v American Broadcasting Cos. Inc., 27 N.Y.3d 46 [2016]; M & E 73-75, LLC v 57 Fusion LLC, 189 A.D.3d 1, 5 [1st Dept 2020]). In determining such a motion, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (298 Humboldt, LLC, v. Torres, 197 A.D.3d 1081, 1083 [2d Dept 2021], quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
In certain situations, however, the presumption falls away when bare legal conclusions and factual claims contained in the complaint are flatly contradicted by evidence submitted by the Defendant (see Guggenheimer, supra; Kantrowitz & Goldhamer, P.C. v Geller, 265 A.D.2d 529 [2d Dept 1999]). When in the uncommon circumstance the evidence reaches this threshold (see Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]), the court "must determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Kantrowitz & Goldhamer, P.C. v Geller, supra', see also Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635-636 [1976]).
Defendants' claim that the causes of action against it based in negligence, including the claim of negligent hiring and retention fail to state a claim. General Obligations Law §11-106 provides that a police officer who "while in the lawful discharge of his official duties" sustains an injury due to the "neglect" of another may recover against the responsible party "other than that police officer's . . . employer or co-employee". "Thus, while a police officer can assert a common-law tort claim against the general public, liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e (see Williams v City of New York, 2 N.Y.3d 352, 363 [2004]). In this procedure context, the claims may be dismissed "upon a proper evidentiary showing that the officers were acting within the scope of their official duties" (see Chavez v City of New York, 99 A.D.3d 614, 615 [1st Dept 2012]). Here, since Plaintiff affirmatively pleads in his complaint that he was acting within the scope of his employment when he was injured and the deposition testimony of Longo confirms, as a matter of law, he was as well. Plaintiffs negligence causes of action fail against Defendant City (see Ferretti v Village of Scotia, 200 A.D.3d 1243 [3d Dept 2021] [Plaintiff, a police officer, shot by an officer from a different police force were co-employees under GOL §11-106 thereby barring a negligence claim]; see also Plunkett v Emergency Med. Servs. Corp., 260 A.D.2d 193, 194 [1stDept 1999]).
Even if the claim were not statutorily barred, a cause of action for negligent hiring and retention would fail. City was Longo's employer when the incident occurred, and therefore responsible for his actions, and Longo is not a party in this action. Thus, all claims are grounded on a theory of respondeat superior (see Karoon v N.Y.City Transit Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27 [1st Dept 1997]; Sugarman v Equinox Holding, Inc., 73 A.D.3d 654, 901 N.Y.S.2d 615 [1st Dept 2010]). Plaintiffs reliance on Haddock v City of New York, 75 N.Y.2d 478 [1990] and Gonzalez v City of New York, 133 A.D.3d 65 [1st Dept 2015] is misplaced as neither of those cases involved municipal co-employees.
Given Defendant City has established that Plaintiff and Longo were co-employees acting within the scope of their employment when the incident occurred and that the negligent hiring and retention claims fail as a result, the personnel records of Longo are not discoverable as the documents are not relevant to any issue before the Court (see Fong v New York City Tr. Auth., 83 A.D.3d 642 [2d Dept 2011]; Neiger v City of New York, 72 A.D.3d 663 [2d Dept 2010]; Trainer v City of New York, 41 A.D.3d 202 [1st Dept 2007]). Nevertheless, nothing in this decision affects whatever statutory rights Plaintiff may have to seeks such information apart from this litigation.
The above decision is reached with reluctance and significant exasperation. The flaw in Plaintiffs causes of action for negligence and negligent hiring, training and retention should have been patently obvious to the City years ago, yet it failed to act until the First Department stuck the issue right under its nose. This colossal blunder, to put it mildly, has resulted in a monumental waste of judicial resources and has caused Plaintiff to make and defend motions related to discovery as well as defend an appeal. This abject lack of diligence warrants fixation of an appropriate monetary sanction (see generally Gordineer v Gallagher, 160 A.D.2d 672, 673 [2d Dept 1990]). As such, Defendant City shall pay Plaintiff for all expenses in attempting to obtain discovery of Longo's NYPD personnel records, including but not limited to, attorney's fees and all costs associated with Defendants' appeal of this Court's order dated November 5, 2020.
The branch of the cross-motion to strike Defendants' answer denied, but if the expenses set by the Court are not timely paid, Defendants' answer shall be stricken. The branch of Plaintiffs motion to amend the complaint is granted.
Accordingly, it is
ORDERED that Defendants' motion pursuant to CPLR §3211 [a][7] is granted and Plaintiffs negligence claims, including those based on a theory of negligent hiring and retention, against Defendant City of New York are dismissed, and it is
ORDERED that this Court's order dated November 5, 2020, is modified to the extent that Defendant City of New York is granted a protective order and Plaintiffs demand for disclosure of Philip Longo's NYPD personnel file, disciplinary records, civilian complaint records and evaluation records is stricken, and it is
ORDERED that Plaintiff may file and serve an amended pleading in the form annexed to the moving papers, subject to the rulings made herein, and it is
ORDERED that Plaintiff shall, within 45 days of efiling of this order, submit an affirmation of legal services containing an itemized account of the attorney's fees and all expenses incurred in relation to discovery of Longo's NYPD personnel records, and it is
ORDERED that Defendant may submit any response to Plaintiffs affirmation of legal services within 20 days after efiling of same, and it is
ORDERED that if the Court finds it necessary, it will order a hearing on the issue of attorney's fees and expenses, and it is
ORDERED that if Defendant fails to timely pay the fees and expenses set by the Court or fails, in the determination of the Court, to act in good faith in the calculation of same, its answer will be stricken upon efiling of an affirmation of non-compliance by Plaintiffs counsel.