Upon the foregoing papers, Plaintiff, FRANKIE GREENE, moves for an Order striking Defendant's answer for failing to respond to Plaintiff's Discovery Demands; (2) granting Plaintiff a trial preference; and (3) extending Plaintiff's time to file a note of issue due to outstanding discovery. Defendants, THE CITY OF NEW YORK, POLICE OFFICER DONALD EDEGER, SGT. RAYMOND KWONG, SGT. DARGENO, et. al. (hereinafter collectively the "City"), cross-move for an order granting them summary judgment on all causes of action except excessive force.

This is an action to recover damages for personal injuries sustained by Plaintiff as a result of an incident on August 20, 2009, when Plaintiff was arrested at his home and remained in custody until August 23, 2009.

According to Plaintiff, approximately a month before his arrest, he was harassed by a [*2]police officer who allegedly searched him without cause. About a month later, the same police officer allegedly searched him again, called him crazy and laughed at him. Afterwards, Plaintiff called 911 and reported the incident. The transcript of this phone call, the relevant portions of which have been provided by both the Plaintiff and the City, is as follows:

Lt. Korede:What do you mean by, he is harassing you sir?

Mr. Greene:Eh? No, right on—no, rub on me, and starts pulling on my arm and stuff. I'm—I'm on dialysis and stuff. You know? I'm a very sick man. And he done it about five, ten times already, for no reason. The same cop keeps doing it. And he's—

Lt. Korede:And it's the same cop that keeps doing it?

Mr. Greene:Yeah, the same cop. He just sent two white cops to do it a while ago. He's sitting in the car laughing. He's like—he's acting as like some kind of joke. Cause I'll take him out, man. I—I'll kill that mother if he don't watch out, if he keep bugging me for no reason.

Lt. Korede:Okay. But you—you—you're saying you're going to kill a cop. And you want to make a complaint about a cop—I don't think that goes well.

Mr. Greene:I have—

Lt. Korede:I have to make—you're calling to make a—a complaint. And now, you're saying you're going to kill a cop?

Mr. Greene:No, I ain't saying I'll kill him. But, hey.

Lt. Korede: Cause that's what you just said.

Mr. Greene:No, I say if he—I said if he keeps pulling on my arm and stuff, and the—and then tries—and then he tries to—

Lt. Korede:Sir, sir, sir. What's your name, sir?

Later that evening, at around 3:30 a.m., Police Officer Donald Edeger and Sergeant Raymond Kwong went to Plaintiff's apartment to arrest him. According to Plaintiff, the officers violently twisted his arm which had visible dialysis tubes in it, refused his request to obtain medication from his apartment, and proceeded to take him to the 77th precinct where he was confined for two and a half hours. Thereafter, Plaintiff was taken to Kingsbrook Jewish Medical Center where he was handcuffed to a hospital bed for three days. Plaintiff was then transported back to the precinct and shortly thereafter to Central Booking. The judge at Central Booking dismissed the charges against Plaintiff.

As a result of the foregoing incident, Plaintiff brings this action alleging, among other things, false arrest, malicious prosecution, excessive force, and violation of his civil rights under 42 USC �1983.

The City now moves for summary judgment ^[FN1] on the grounds that the arresting officers [*3]had probable cause to arrest and prosecute Plaintiff based on the aforementioned 911 conversation. According to the City, Sergeant Kwong received notification from the precinct that Plaintiff called 911 and threatened a police officer; Officer Edeger, who was with Sergeant Kwong, listened to the recording of Plaintiff's conversation, "confirming that [P]laintiff had in fact threatened a police officer;" and that based on this information, they proceeded to Plaintiff's residence to effect his arrest.

Plaintiff was arrested for Aggravated Harassment in the Second Degree, New York State Penal Law �240.30[1], which states in relevant part:

A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm...

It is the City's position that Plaintiff's statements cannot be read in any other light but threatening and with intent to harass in that he communicated with the 911 operator, by telephone, to take the officer out or kill him if he continued to act in the manner that bothered Plaintiff.

In addition to arguing that the officers had probable cause as a matter of law, the City argues that Plaintiff's false arrest and malicious prosecution claims should be dismissed on qualified immunity grounds since Sergeant Kwong and Officer Edeger had "arguable probable cause" because it was objectively reasonable for them to believe that probable cause existed.

The City also moves to dismiss Plaintiff's complaint in its entirety as against Defendant Sergeant Eric Dargenio which has not been opposed by Plaintiff. The City submits that Sergeant Dargenio's sole involvement in this incident was the act of signing off on the complaint report completed by Officer Edeger. According to Sergeant Dargenio's EBT testimony, he never met Plaintiff and his tour began after Plaintiff was brought to the precinct.

The City also moves to dismiss Plaintiff's Monell claims for failure to adequately plead that the municipality engaged in an official policy and practice that caused a deprivation of Plaintiff's Constitutional rights. In the alternative, the City argues that Plaintiff's Monell claims should be bifurcated and stayed for purposes of judicial economy.

Finally, the City moves to dismiss Plaintiff's claims for negligent hiring and intentional infliction of emotional distress which has not been opposed by Plaintiff.

In opposition to the City's motion, Plaintiff argues that issues of fact exist as to probable cause because Plaintiff did not make a clear, unambiguous and immediate threat. It is Plaintiff's position that the so-called threat was merely an expression of displeasure with being repeatedly harassed by a police officer. When asked by the operator whether Plaintiff meant "to kill a cop," Plaintiff argues that he unambiguously stated that he did not. It is Plaintiff's position that his arrest was in retaliation for making a complaint against a police officer and that he is, in any case, entitled to finish depositions of other officers, including Lt. Korede, to examine this issue.

With respect to his Monell claims, Plaintiff contends that the City is precluded from [*4]seeking to dismiss these claims for inadequate pleading because the City has already moved for this relief which the Court denied on June 20, 2012.^[FN2]

Plaintiff's motion seeks to strike the City's answer for its failure to respond to his Discovery Demands dated November 5, 2010 and January 16, 2012, the latter consisting of a Demand for Interrogatories related to Monell discovery. In response, the City contends that it is either in compliance with existing discovery orders or Plaintiff is not otherwise entitled to the requested discovery.

The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is well established that "[p]robable cause to believe that a person committed a crime is a complete defense to claims of false arrest and malicious prosecution" (MacDonald v Town of Greenburgh, 112 AD3d 586, 586-87 [2d Dept 2013][citing Fortunato v City of New York, 63 AD3d 880, 880 [2d Dept 2009]]). Probable cause is defined as such grounds as would induce an ordinarily prudent person, under the circumstances, to believe that plaintiff had committed the crime (see Petrychenko v Solovey, 99 AD3d 777, 780 [2d Dept 2012]). Probable cause may be decided by the court as a matter of law only where there is no real dispute as to the facts or the proper inferences to be drawn therefrom (Holland v City of Poughkeepsie, 90 AD3d 841, 845 [2d Dept 2011]).

Under federal law, the doctrine of qualified immunity shields police officers from being subject to personal liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known (Tretola v County of Suffolk, 2014 US Dist LEXIS 21430, 08-CV-3225(DRH)(WDW), *43 [EDNY 2014]). In this respect, "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments," and "protects all but the plainly incompetent or those who knowingly violate the law'" (Carpenter v City of New York, 2013 US Dist LEXIS 169094, 11 Civ. 8414 (DLC), *12 [SDNY 2013]).

With regards to a false arrest claim under �1983, an arresting officer is entitled to qualified immunity if "(1) it was objectively reasonable for the officer to believe there was probable cause to make the arrest, or (2) reasonably competent police officers could disagree as to whether there was probable cause to arrest" (Ricciuti v New York City Transit Auth., 124 F3d 123, 128 [2d Cir 1997]). If officers of reasonable competence could disagree on whether the probable cause test was met, then "arguable probable cause" is established (Hargroves v City of New York, 411 Fed Appx 378, 382 [2d Cir 2011]). [*5]

In this case, there is no dispute that Plaintiff uttered the phrase "I'll take him out, man — I'll kill that mother if he don't watch out." The record evidence also establishes that Officer Edeger and Sergeant Kwong received a call from the precinct about an alleged threat and that after listening to the recording of Plaintiff's telephone conversation with Lt. Korede, they made a determination that Plaintiff's statements constituted a threat to a fellow police officer. The question is whether, given the context of the phone call, which is Plaintiff calling 911 to lodge a complaint against a police officer for alleged harassment, and the seemingly contingent and uncertain nature of Plaintiff's threatening statements, it was objectively reasonable for the subject police officers to believe there was probable cause to arrest Plaintiff or that, at the very least, a reasonably competent police officer could disagree as to whether there was probable cause to arrest Plaintiff.

The Court answers the question in the affirmative and finds that the subject police officers are entitled to qualified immunity. While Plaintiff is correct in that case law establishes that a count of Aggravated Harassment under Penal Law �240.30[1] cannot be sustained unless the complaint alleges a threat that is "clear, unambiguous, and immediate"(see People v Behlin, 21 Misc 3d 338, 341 [Kings Cty 2008]), which cannot be said about the statements here, the relevant inquiry in determining whether an officer is entitled to qualified immunity is "not what a lawyer would learn or intuit from researching case law, but what a reasonable person in a defendant's position should know about the constitutionality of the conduct" (Amore v Novarro, 624 F3d 522, 534 [2d Cir 2010]). Here, given the severity of Plaintiff's statements, it was not objectively unreasonable for the arresting officers to construe Plaintiff's statements as a threat in violation of Penal Law �240.30[1].

Thus, the individual police officers are granted summary judgment on Plaintiff's false arrest and malicious prosecution claims under �1983 on grounds of qualified immunity.

That portion of the City's motion seeking to dismiss Plaintiff's Monell claims is also granted. Contrary to Plaintiff's assertions, the instant motion to dismiss is not identical to the previous motion decided by this Court on April 9, 2012, since a substantial amount of discovery has taken place since the last motion was decided. The Court finds that the record does not support a claim for Monell liability as there is no evidence or facts to support the claim that the police officers' actions took place pursuant to a specific policy or custom and practice. As such, Plaintiff's Monell claims must be dismissed.

Plaintiff's claims for negligent hiring and intentional infliction of emotional distress are also dismissed as the City has demonstrated its entitlement to summary judgment on those claims. Plaintiff also failed to oppose that portion of the City's motion.

Summary judgment is also granted to Sergeant Dargenio and the complaint is dismissed as against him. Plaintiff does not dispute that Sergeant Dargenio's only involvement in this incident was signing off on Officer Edeger's complaint report.

Plaintiff's Motion

Plaintiff's motion to strike for failure to respond to discovery demands is denied. Plaintiff's good faith affirmation fails to delineate what efforts he took to resolve the discovery dispute. In any case, a portion of the discovery that Plaintiff now seeks — the Demand for Interrogatories dated January 16, 2012 — relates to Monell discovery which has now been rendered moot. As for the discovery demand dated November 5, 2010, the parties are directed to resolve this issue at the next compliance conference currently calendared to take place on May 20, 2014 in the City Discovery Part. [*6]

That portion of Plaintiff's motion seeking a trial preference is also denied with leave to renew upon the filing of the note of issue.

Lastly, that part of Plaintiff's motion seeking to extend the note of issue is granted. The note of issue is extended to August 31, 2014.

Conclusion

For the reasons set forth above, it is hereby

ORDERED that the City's motion seeking summary judgment on Plaintiff's 42 USC �1983 claims for false arrest and malicious prosecution on the basis of qualified immunity is GRANTED as to the individual police officers; it is further

ORDERED that the City's motion seeking summary judgment on Plaintiff's 42 USC �1983 claims against the municipality, negligent hiring and intentional infliction of emotional distress is GRANTED; it is further

ORDERED that the City's motion seeking summary judgment dismissing Plaintiff's complaint as against Defendant Sergeant Dargenio is GRANTED; it is further

ORDERED that Plaintiff's motion seeking to strike the City's answer is DENIED; it is further

ORDERED that Plaintiff's motion seeking a trial preference is DENIED with leave to renew; and it is further

ORDERED that the note of issue is extended to August 31, 2014.

This constitutes the Decision and Order of the Court.

E N T E R,

_________________________

Sylvia G. Ash, J.S.C.