Opinion
24253/09.
Decided June 15, 2011.
Plaintiff was represented by Rodney S. Lapious, Esq., Bohemia, NY.
Defendant was represented by Tzipora Teichman, Esq., New York City Law Department, Office of the Corporation Counsel, New York, NY.
Upon the foregoing papers, plaintiff Susan Piggott, both as executrix of the estate of Michael Piggott, deceased, and individually, moves for an order, pursuant to CPLR 3126, striking the answer of defendants the City of New York, Raymond J. Kelly, individually, and in his official capacity as NYC Police Commissioner, Paul Browne, individually, and in his official capacity as NYC Police Department Spokesman, "John Doe," Chief of Emergency Services Unit, and other "John Does," individually and in their official capacities as Supervisory Police Officers, the identity and number of whom are presently unknown (collectively the City defendants), on the ground that they have failed to respond to certain discovery demands or, in the alternative, compelling said defendants to comply with all outstanding discovery directives contained in a preliminary conference order dated June 17, 2010. The City defendants cross-move for an order, pursuant to CPLR 3211 (a) (7), dismissing plaintiff's complaint on the ground that it fails to state causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress and federal civil rights violations under 42 U.S.C. § 1983.
On September 24, 2008, Michael Piggott, then a lieutenant in the Emergency Services Unit (the ESU) of the New York City Police Department, and other members of the ESU, responded to a report of an emotionally disturbed individual. After their arrival at the scene, Iman Morales, the emotionally disturbed individual who was the subject of the call for assistance, entered the fire escape of the building known as 489 Tompkins Avenue, in Brooklyn, New York, attempted to enter a fourth floor neighbor's apartment, subsequently descended to the second floor of the fire escape and then proceeded to climb onto the housing of a security gate located approximately 10 feet above the sidewalk. The ESU officers began to secure themselves on the second floor fire escape in order to approach Iman Morales to provide him with assistance. As one officer attempted to secure himself on the fire escape, Mr. Morales swung and jabbed at the officer with an 8 foot long neon light bulb. In order to protect said officer, Officer Michael Piggott directed Sergeant Nicholas M. Marchesona (Officer Marchesona), another ESU officer, to employ a conducted energy device (CED), commonly referred to as a "taser," upon Mr. Morales. As a result of being tasered, Mr. Morales fell to the ground, struck his head and died.
On September 24, 2008, the NYC Police Department conducted an investigation of the facts and circumstances surrounding the aforesaid incident. Said investigation included interviews with members of the ESU who were present at the scene of the incident. Office Piggott and Officer Marchesona were not interviewed. As a result of the investigation, Officer Piggott was ordered by his Superiors to surrender his gun and badge. He was immediately removed form the ESU and assigned to a desk job in the motor pool of the New York City Police Department.
The gravamen of the instant complaint concerns the alleged misconduct of the City defendants in their treatment of plaintiff's decedent, Michael Piggott, (Officer Piggot) a New York City Police Lieutenant, following his involvement in an incident during which Iman Morales, an emotionally disturbed person, was killed. Specifically, in the aftermath of the aforesaid incident, Plaintiff alleges that the City defendants broadcasted on the television, radio and newspapers false and unjustified statements, that Officer Piggott made a mistake and that by ordering the tasering, he violated Police Department guidelines and caused the death of Iman Morales. Plaintiff contends that various supervisory personnel informed Officer Piggott that he would never work in the ESU again. Between September 24, 2008 and October 2, 2008, Officer Piggott was also advised that he may be civilly prosecuted by the estate of Mr. Morales and would be personally responsible for any judgment entered against him in such action. He was also told that he might be criminally prosecuted and sent to prison. Supervisory personnel also widely reported to the news media that Officer Piggott had "screwed up," violated Police Department guidelines and improperly used a taser. Plaintiff further contends that based upon the alleged misconduct of the City defendants, Officer Piggott suffered extreme emotional anguish, humiliation, depression, fear and shame during the time period from September 24, 2008 until October 2, 2008. That the City defendants intentionally and negligently inflicted emotional distress upon Officer Piggott to such a degree that he ultimately took his own life on October 2, 2008.
In the instant action, the court must determine whether plaintiff has establish causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress and civil rights violations under 42 U.S.C. § 1983.
". . . On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and according the plaintiff the benefit of every possible inference" (Avgush v Town of Yorktown, 303 AD2d 340, 341; see also Bernberg v Health Mgt. Sys., Inc., 303 AD2d 348, 349; Old Salem Dev. Group, Ltd. v Town of Fishkill, 301 AD2d 639, 639; Scheider v Hand, 296 AD2d 454, 454; Marec v Lynch, 289 AD2d 541, 541; Gruen v County of Suffolk, 187 AD2d 560, 562). The only issue for the court to determine on a motion to dismiss a complaint is "whether the facts as alleged fit within any cognizable legal theory" (Hynes v Griebel, 300 AD2d 628, 628; see also PT Bank Central Asia v ABN Amro Bank, N.V., 301 AD2d 373, 375; Gruen v County of Suffolk, 187 AD2d at 562). Accordingly, "[t]he pleading is deemed to allege whatever can be implied from its statements by fair and reasonable intendment" (Components Direct, Inc. v European American Bank and Trust Co., 175 AD2d 227, 232). Stated differently, "if from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275). Moreover, "[t]he criterion is whether the plaintiff has a cause of action and not whether he [or she] may ultimately be successful on the merits" (One Acre, Inc. v Town of Hempstead, 215 AD2d 359). The dismissal of a complaint pursuant to CPLR 3211(a) (7), therefore, "will be warranted only in those situations in which it is conclusively established that there is no cause of action" (Town of North Hempstead v Sea Crest Construction Corp., 119 AD2d 744, 746).
The elements of a claim for intentional infliction of emotional distress are: "(I) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., Inc., 81 NY2d 115, 121). It is well settled that "the requirements of the rule are rigorous and difficult to satisfy" (id. at 122 [internal quotation marks and citations omitted]; accord Murphy v American Home Prods. Corp., 58 NY2d 293, 303[acknowledging that a plaintiff must satisfy a "strict standard" in order to avoid the dismissal of his or her claim for intentional infliction of emotional distress]). Accordingly, in order to be actionable, the conduct alleged must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy, 58 NY2d at 303 [internal quotation marks and citation omitted]; accord Lauer v City of New York, 240 AD2d 543, 544, lv denied 91 NY2d 807[recognizing that the acts alleged in support of an intentional infliction of emotional distress claim must reflect conduct which is "extreme, outrageous, utterly reprehensible, and intolerable in a civilized society"]).
Indeed, "courts have tended to focus on the outrageousness element [as] the one most susceptible to determination as a matter of law" (Howell, 81 NY2d at 121; accord Harville v Lowville Cent. School Dist., 245 AD2d 1106, 1107["Whether the alleged conduct is outrageous is, in the first instance, a matter for the court to decide"]). In so doing, courts must be mindful that even inappropriate and irresponsible behavior on the part of defendants or misconduct which subjects the plaintiff to insults, indignities and annoyances generally will not suffice to state a cause of action for intentional infliction of emotional distress if the complained of conduct cannot be deemed "so outrageous . . . as to go beyond all possible bounds of decency" (see Harville, 245 AD2d at 1107 [internal quotation marks and citation omitted]; see also Poliah v Westchester County Country Club, Inc., 14 AD3d 601, 601). Moreover, it is well settled that "claims of intentional infliction of emotional distress against government bodies are barred as a matter of public policy" (Dillon v City of New York, 261 AD2d 34, 41; accord Pezhman v City of New York, 47 AD3d 493, 494; Lauer, 240 AD2d at 544; Wheeler v State, 104 AD2d 496, 498).
A claim of negligent infliction of emotional distress likewise relies upon allegations of conduct "so extreme in degree and outrageous in character as to go beyond all possible bounds of decency, so as to be regarded as atrocious and utterly intolerable in a civilized community" (Wolkstein v Morgenstern, 275 AD2d 635, 636-637[internal quotation marks and citations omitted]; accord Hernandez v City of New York, 255 AD2d 202, 202; Rocco v Town of Smithtown, 229 AD2d 1034, 1035, appeal dismissed 88 NY2d 1065). Moreover, such conduct must have either unreasonably and directly endangered the plaintiff's physical safety (see Ben-Zvi v Kronish Lieb Weiner Hellman LLP, 278 AD2d 167, 167) or caused the plaintiff to fear for his or her own physical safety (see Lancellotti v Howard, 155 AD2d 588, 589-590). This comports with the well settled principle that "[t]he circumstances under which recovery may be had for purely emotional harm are extremely limited" (Lancellotti, 155 AD2d at 589).
With respect to both the intentional and negligent infliction of emotional distress claims, the court determines that the facts alleged in the plaintiff's complaint fail to state causes of action. As an initial matter, it is well settled that public policy bars intentional infliction of emotional distress claims asserted against municipal defendants (see Dillon, 261 AD2d at 41; accord Pezhman, 47 AD3d at 494; Lauer, 240 AD2d at 544; Wheeler v State, 104 AD2d at 498). Here, the Court finds that the complaint does not plead the existence of outrageous conduct that is an essential element of both causes of action premised upon emotional harm. Plaintiff argues that the statements to the press by the City defendants that Officer Piggott had "screwed up," improperly used a taser, and violated Police Department guidelines were false and unjustified. However, plaintiff's arguments are not supported by allegations of ultimate facts and none was alleged in the complaint. Although the Court is constrained to construe complaints liberally, the factual underpinning of same, nonetheless, "must be sufficiently particular to give the court and parties notice of the transactions or occurrences to be proved and must support the material elements of the cause[s] of action" asserted therein (Matter of Reden v Nassau County Civil Serv. Comm., 133 AD2d 694, 694). Bare legal conclusions, therefore, are not entitled to the general presumption afforded to plaintiffs under CPLR 32ll (a) (7) that the facts pleaded within the complaint are true (see Tal v Malekan, 305 AD2d 28, 281; Kantrowitz Goldhamer, P.C. v Geller, 265 AD2d 529, 529; Sotomayor v Kaufman, Malchman, Kirby Squire, LLP, 252 AD2d 554, 554; WFB Telecommunications v NYNEX Corp., 188 AD2d 257, 259, lv appeal denied 81 NY2d 709). Moreover, "under New York rules of procedure, conclusory averments of wrongdoing are insufficient to sustain a [cause of action] unless supported by allegations of ultimate facts'" (Vanscoy v Namic USA Corp., 234 AD2d 680, 682 [1996, quoting Muka v Greene County, 101 AD2d 965, lv denied 63 NY2d 610).
The City defendants' statements to the press do not demonstrate the requisite level of outrageous conduct necessary to sustain claims of intentional and negligent infliction of emotional distress (see generally e.g. Butler v Otsego Corp., 201 AD2d 783, 785[dissemination of allegedly defamatory materials about plaintiff's past to news outlets and certain business associates of plaintiff deemed not sufficiently outrageous to be actionable pursuant to tort of intentional infliction of emotional distress]). Although, in some instances, a defendant who is in a position of power or authority vis-a-vis the plaintiff may be held liable for outrageous conduct related to his or her abuse of said position, the facts alleged in the instant action fall short of the type of sustained and relentless harassment that is typical of an intentional infliction of emotional distress claim based upon abuse of power (see e.g. Shannon v MTA Metro-North Railroad, 269 AD2d 218, 219; Warner v Druckier, 266 AD2d 2, 3; cf. Vasarhelyi v the New School for Social Research, 230 AD2d 658, 660[recognizing that where plaintiff claimed that, at the behest of her employer and under threat of severe consequences to her employment, she was subjected to hours of intrusive and threatening interrogation over the course of several days, a "remedy [was] available [to her] in the form of an action for the intentional infliction of emotional distress" based upon the defendants' "deliberate and malicious campaign of harassment [and] intimidation").
The demotion of Officer Piggott by the City, including the concomitant forced relinquishment of his firearm and badge, even if baseless as the complaint alleges, nonetheless falls within the permissible discretion of the Police Department in its response to, and investigation of, the incident which resulted in the death of Mr. Morales. The imposition of a change in work conditions and terms of employment by the City defendants upon Officer Piggott, even if unfair or unsupported, hardly constitutes the type of extreme, outrageous, and utterly reprehensible conduct that causes of action for emotional harm may be utilized to rectify.
Similarly, the threats allegedly made to Office Piggott by the City defendants concerning his potential criminal prosecution and civil liability, for which he would not be provided a defense by his employer, do not rise to the level of conduct so extreme in degree and outrageous in character that they may be regarded as atrocious and utterly intolerable in a civilized community (see e.g. Brown v Sears Roebuck and Co., 297 AD2d 205, 212[determining that, even if true, plaintiff's allegation that defendant gave false information about him to the police did not describe conduct sufficiently outrageous to sustain a claim for intentional infliction of emotional distress]; Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 223[affirming trial court's determination that plaintiff had failed to state a cause of action for intentional infliction of emotional distress where the complained of conduct of the defendants did not go beyond "simply making . . . alleged statements to" plaintiff accusing her of taking money from her employer and threatening her that she would be reported to the police if she did not either offer an explanation for what had occurred or return the funds]; La Duke v Lyons, 250 AD2d 969, 972-973[affirming trial court's rejection of plaintiff nurse manager's claim for intentional infliction of emotional distress where she alleged that defendants had made false statements to her employer accusing her of euthanasia, which resulted in termination of her employment, and also advised the District Attorney about such alleged criminal conduct]).
As cogently stated in the authoritative treatise on personal injury claims, Prosser and Keaton, Restatement [Second] of Torts, § 46, comment d [1965]:
It has not been enough [for purposes of the imposition of liability for intentional or negligent infliction of emotional distress] that the defendant has acted with an intent which is tortious or even criminal, or that he [or she] has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.
Bearing this maxim in mind, the court recognizes that a defendant's actions may be ill-advised, inappropriate, irresponsible, insensitive, mean-spirited, unfair and overreactive, yet still not be actionable under the emotional harm torts asserted in this case. Even if the conduct alleged actually causes, or is meant to cause, some measure of emotional harm or injures a plaintiff's sense of well-being, it may not form the basis for tort liability unless it rises to the extreme level of uncivilized behavior demanded by the subject causes of action.
Accordingly, in construing the allegations as true and affording plaintiff every favorable interpretation reasonably based thereupon, as it is constrained to do on a motion to dismiss (see Avgush, 303 AD2d at 341), the court may indeed infer, for purposes of said motion, that Officer Piggott was treated insensitively and unfairly by the City defendants, particularly in light of the undoubtedly stressful and unquestionably tragic circumstances which formed the backdrop for their actions. The court cannot, however, deem such conduct to be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy, 58 NY2d at 303 [internal quotation marks and citation omitted]). The record is devoid of anything in plaintiff's history that would have put defendants on notice that plaintiff might take his own life as a result of their actions. Therefore, plaintiff has failed to state causes of action for either intentional infliction of emotional distress or negligent infliction of emotional distress.
Plaintiff's section 1983 claims must also be dismissed. In order to impose liability upon a municipality for civil rights violations pursuant to 42 U.S.C. § 1983, a plaintiff must allege that a policy or custom of said municipality caused the alleged constitutional violation (see Monell v Dept. of Soc. Servs., 436 US 658, 690-91; accord Ricciuti v New York City Transit Authority, 941 F2d 119, 122 [2d Cir 1991][noting that in order to prevail in a section 1983 action "a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy"]). There is no respondeat superior liability for a municipality under section 1983 and, accordingly, the violation of plaintiff's civil rights by a municipal employee, without more, will not render the municipality liable for such violation (see Monell, 436 US at 694; see also Ramos v City of New York, 285 AD2d 284, 302). Moreover, "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy'"(DeCarlo v Fry, 141 F3d 56, 61, quoting Ricciuti, 941 F2d at 123).
Individuals acting under color of law may also be held liable under section 1983 for violations of a plaintiff's constitutional civil rights (see Alvarez v Snyder, 264 AD2d 27, 34). However, "[t]he requirement of pleading an official policy or custom of a municipality through which a constitutional injury has been inflicted upon a plaintiff applies only to 42 USC § 1983 claims against a local government, and not to such claims against individual defendants in their official capacities" (Bosone v County of Suffolk, 274 AD2d 532, 534). Rather, "[i]n order to state a claim [against an individual defendant] under that statute, the plaintiff must allege, at a minimum, conduct by a person acting under color of law which deprived the injured party of a right, privilege or immunity guaranteed by the Constitution or the laws of the United States" and said claim is subject to dismissal where "no Federally protected right was clearly" alleged (Dipalma v Phelan, 81 NY2d 754, 756).
Here, the complaint fails to allege that a municipal policy or custom caused Officer Piggott to be deprived of a right, privilege or immunity guaranteed to him by the Constitution or the laws of the United States (see R.A.C. Group v Bd. of Educ. of City of New York, 295 AD2d 489, 489).Moreover, the facts as alleged herein concern a discrete incident and, even when liberally construed, do not implicate larger policy issues with the requisite degree of specificity (see generally DeCarlo v Fry, 141 F3d at 61). Similarly, the complaint does not allege, other than in wholly conclusory terms, how the actions of the individual municipal defendants caused the deprivation of Officer Piggott's civil rights and fails to identify with any particularity the protected rights allegedly violated by the defendants (see Dipalma, 81 NY2d at 755). Accordingly, the court is constrained to dismiss plaintiff's 1983 claims.
Based upon the facts of this case, the City defendants' cross motion to dismiss is granted in its entirety. Plaintiff's motion for relief based upon allegedly outstanding discovery is hereby denied. The Court finds that the outstanding discovery was not directly relevant to the issues presented on this motion.
The foregoing constitutes the Decision and Order of the court.