The following papers numbered 1 to 3 were fully submitted on the 6th day of November, 2013:

PapersNumbered

Notice of Motion for Summary Judgment by Defendants

(Affirmation in Support of Motion)

(Dated: August 16, 2013).....................................1

Affirmation in Response and in Partial Opposition

(Dated: November 3, 2013)....................................2

Reply Affirmation in Support of City's Motion

(Dated: November 4, 2013)....................................3

______________________________________________________ ___________

Upon the foregoing papers, the motion of defendants The City of New York, The New York City Police Department (hereinafter the "City"), and Police Officer Milton Salazar (hereinafter "Officer Salazar") for dismissal of the complaint pursuant to CPLR 3211(a)(7) or, in the alternative, for summary judgment is granted to the extent indicated; the balance of the motion is denied.

This matter arises out of an incident which occurred on May 11, 2010, on Richmond Avenue near the intersection of Travis Avenue, on Staten Island. To the extent relevant, plaintiff claims to have sustained extensive personal injuries, including aggravation of a pre-existing back injury for which he had undergone surgery three months earlier, when Officer Salazar wrongfully detained, frisked, and man-handled him following a routine traffic stop.

The facts underlying the incident are in sharp conflict. In essence, plaintiff maintains that Officer Salazar stopped him at the intersection of Richmond Avenue and Arthur Kill Road, and issued him two tickets for violating Vehicle and Traffic Law §375 (B)(2) (i.e., excessive window tint). After an apparently unsuccessful attempt to gain some form of professional courtesy by [*2]informing Officer Salazar that both his mother and uncle were fellow officers, plaintiff accepted the tickets and resumed driving. However, he was again stopped some 300 feet later by the same officer, who claimed that plaintiff had been tailgating the officer's vehicle. According to plaintiff, at this juncture, Officer Salazar "grabbed [his] shoulders, twisted [him] and pushed [him] onto the [hood of] the car" (see City's Exhibit D, p 69). As described by plaintiff: "My hands are on the hood. Then I had my head up and he pushed me down to lean over my hood. So I turned back, I said, officer, please take it easy. I just had lower back surgery. And at that point [the officer] grabbed my left arm and put it behind my back and took out the handcuffs. He put one on and then he started searching me" (id.).

For his part, Officer Salazar claims that plaintiff became verbally abusive during the first traffic stop and began to tailgate him the moment they pulled away from the intersection of Richmond Avenue and Arthur Kill Road. When the officer pulled plaintiff over the second time, plaintiff continued to argue about being issued the first two tickets. According to Officer Salazar: "I asked him to stop following my vehicle. And I turned to walk back to my RMP...I turned back and I saw [plaintiff] put his hand on his waistband like he was pulling something out from his waistband...I asked him to exit the vehicle and show me his hands...When [plaintiff] refused...I opened the door...grabbed a hold of his left arm, [and] escorted him out of the vehicle" (see City's Exhibit E, pp 48-54). Officer Salazar then placed plaintiff in handcuffs, searched his vehicle, and allowed him to leave. At no time did plaintiff inform the officer that he had just undergone surgery to his spine.

In his July 1, 2010 Notice of Claim against the City, plaintiff sets forth the nature of his claim as follows: "assault and battery, excessive force, negligent hiring and retention of incompetent and unfit police officer, as well as violation of [his] civil rights, false arrest, intentional infliction of mental distress, negligence and personal injury" (see City's Exhibit A). Plaintiff's March 4, 2011 Verified Complaint asserts five causes of action against both the City and the individual defendant, and includes a claim for the deprivation of his civil rights pursuant to 42 USC §1983 (see City's Exhibit B).

In their motion, defendants maintain that: (1) the Notice of Claim is inadequate due to plaintiff's failure to identify the offending officer; (2) the claims of negligent hiring, training and retention were mooted by the City's admission that Officer Salazar was acting within the scope of his employment; (3) the claim that plaintiff's civil rights were violated is inadequately pleaded owing to his failure to allege the existence of a policy, custom or practice on the part of the City; (4) the claim for intentional infliction of emotional distress is duplicative of the causes of action alleging false arrest and assault and battery, and (5) plaintiff's guilty plea to the Vehicle and Traffic Law violations serves to establish probable cause for the officer's initial stop, thereby barring any claims for false arrest or false imprisonment predicated thereon.

In opposition to the motion, plaintiff has withdrawn his claims for negligent hiring, (the Third Cause of Action), training and retention, as well as the alleged violation of his civil rights (the Fourth Cause of Action). With regard to his Fifth Cause of Action, i.e., the claim for intentional infliction of emotional distress, plaintiff concedes that should this Court find that the Notice of Claim lacks specificity as to the outrageous nature of the conduct allegedly demonstrated by Officer Salazar, then the claim must be dismissed, since the City itself is immune from liability for the intentional infliction of emotional distress as a matter of public [*3]policy. However, the balance of the motion should be denied.

In the opinion of this Court, plaintiff's cause of action for the intentional infliction of emotional distress is indeed duplicative of the viable portions of the causes of action for assault and battery and false imprisonment. Accordingly, his Fifth Cause of Action must be dismissed (see Afifi v. City of New York, 104 AD3d 712; Leonard v. Reinhardt, 70 AD3d 570; cf. Fischer v. Maloney, 43 NY2d 553, 557-558).

Nevertheless, the Court finds that plaintiff's Notice of Claim is legally sufficient to support his remaining causes of action for false imprisonment and assault and battery to the extent predicated on the events surrounding his second "stop".

As the Court of Appeals has noted, "[I]n determining compliance with the requirements of General Municipal Law §50-e, courts should focus on the purpose [to be] served by a Notice of Claim [, i.e.,] whether based on the claimant's description [the municipal authorities] can locate the place, fix the time and understand the nature" of the purported incident (Brown v. City of New York, 95 NY2d 389, 393). Thus, the requirements of the statute are met "when the notice describes the [incident] with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim" (Palmer v. Society for Seamen's Children, 88 AD3d 970, 971).

Indeed, in Vallejo-Bayas v. New York City Tr. Auth. (103 AD3d 881), the Second Department recently upheld a notice of claim which provided the correct date, location, nature, and approximate time of the alleged accident in which plaintiff was allegedly injured, but failed to identify the transit bus purportedly causing same. In the course of so doing, the court observed that "the information contained in the notice of claim, supplemented by the [claimant's] testimony...at the General Municipal Law §50-h hearing was sufficient to allow the Transit Authority to conduct a meaningful investigation" (id. at 883). Moreover, it is well settled that "[i]n passing upon the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself. [Rather, t]he relevant inquiry is [that] set forth in General Municipal Law §50-e(6), which provides that a mistake, omission, irregularity or defect made in good faith...may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall [also] appear that the other party was not prejudiced thereby" (D'Alessandro v. New York City Tr. Auth., 83 NY2d 891, 893). Accordingly, in circumstances such as the present, the underlying purpose of General Municipal Law §50-e can be satisfied without requiring the claimant to name the individual agents, officers or employees whose conduct has been drawn into question in the notice of claim (see e.g. Goodwin v. Pretorius, 105 AD3d 207, 216).

Here, the information contained in plaintiff's Notice of Claim, together with the testimony garnered at his General Municipal Law §50-h hearing, served to place defendants on notice of plaintiff's surviving causes of action for false imprisonment and assault and battery attributable to the actions of Officer Salazar.

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted to the extent of dismissing plaintiff's "THIRD", "FOURTH" and "FIFTH" causes of action, as well as so much of his "FIRST" and "SECOND" causes of action as are predicated upon his initial "stop" by Officer Salazar; and it is further[*4]ORDERED that the balance of the motion is denied; and it is further

ORDERED that the Clerk enter judgment is accordance herewith.

E N T E R,

Dated: January 23, 2014

__/s/_________________________

Hon. Thomas P. Aliotta

J. S. C.