Opinion
01-03-2017
Iqbal HUSSAIN, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Law Offices of William Pager, Brooklyn (William Pager of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.
Law Offices of William Pager, Brooklyn (William Pager of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.
SAXE, J.P., MOSKOWITZ, GISCHE, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about March 25, 2015, which, to the extent appealed from as limited by the briefs, granted defendants' motion pursuant to CPLR 3211 to dismiss the fifth and sixth causes of action as against defendant City of New York, unanimously affirmed, without costs.
Supreme Court correctly dismissed the fifth cause of action alleging negligence, since the allegations, to the extent not conclusory, allege intentional torts, not negligence (Salemeh v. Toussaint, 25 A.D.3d 411, 412, 810 N.Y.S.2d 1 [1st Dept.2006] ; accord Smiley v. North Gen. Hosp., 59 A.D.3d 179, 180, 872 N.Y.S.2d 456 [1st Dept.2009] ). Also, the complaint does not state a cause of action for negligent hiring, retention, training, or supervision, and plaintiff may not rely on such a theory on appeal to save his negligence claim (Davila v. City of New York, 95 A.D.3d 560, 561, 946 N.Y.S.2d 20 [1st Dept.2012] ).
Supreme Court also correctly dismissed the sixth cause of action alleging civil rights violations. A municipality may not be held vicariously liable for constitutional violations pursuant to 42 U.S.C. § 1983, but rather may only be liable pursuant to the statute where the municipality itself caused the constitutional violation through an official policy or custom (Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ; Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88 [1st Dept.2010] ). Plaintiff's complaint failed to allege any such custom or practice; defendant police officers' testimony cited by plaintiff does not describe a policy or custom of detaining working taxi drivers for psychiatric evaluations.
We have considered plaintiff's remaining contentions and find them unavailing.