Opinion
2012-10-25
Rene CHAVEZ, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for appellants. Drabkin & Margulies, New York (Caitlin Robin of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for appellants. Drabkin & Margulies, New York (Caitlin Robin of counsel), for respondent.
GONZALEZ, P.J., MOSKOWITZ, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered September 28, 2011, which denied defendants' motion to dismiss the complaint and granted plaintiff's cross motion to amend the complaint and to compel defendants to produce certain documents, unanimously affirmed, without costs.
Plaintiff alleges that his constitutional rights were violated by the use of excessive force during his arrest as a result of the beating administered by the police officers and the attack by the police dog, which resulted in multiple surgeries to repairdamage to his arm. The amended pleading sufficiently alleges that the City's purported failure to train or supervise its employees was tantamount to an official policy or custom under the standards of 42 USC § 1983 ( see Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 293–294, 763 N.Y.S.2d 635 [2d Dept. 2003];Walker v. City of New York, 974 F.2d 293 [2d Cir.1992],cert. denied507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 [1993] ).
The court also properly declined to dismiss the negligent hiring and retention claim. Although the claim may be dismissed upon a proper evidentiary showing that the officers were acting within the scope of their official duties ( see Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27 [1st Dept. 1997] ), defendants failed to make such a showing ( see e.g. Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455, 456, 826 N.Y.S.2d 152 [2d Dept. 2006];see also Pickering v. State of New York, 30 A.D.3d 393, 394, 816 N.Y.S.2d 566 [2d Dept. 2006] ).
The motion court did not err in ordering that defendants produce, for in camera inspection, the subject officers' personnel files, including any prior Civilian Complaint Review Board complaints made against them and any prior disciplinary actions taken against them. These records are discoverable, even if the officers are acting within the scope of their employment ( see McFarlane v. County of Suffolk, 79 A.D.3d 706, 708, 912 N.Y.S.2d 297 [2d Dept. 2010];Blanco v. County of Suffolk, 51 A.D.3d 700, 858 N.Y.S.2d 314 [2d Dept. 2008] ).