The following papers numbered 1 to 4 read on this motion

Notice of Motion 1 - 2
Affirmation in Opposition 3
Reply Affirmation 4

Defendants, the City of New York (hereinafter "City") and the New York City Police Department (hereinafter "NYPD"), move inter alia for summary judgment, dismissing plaintiff's complaint as [*2]asserted against them.

This is an action to recover damages for the alleged wrongful death of Gilroy Davis on March 15, 2010 following the decedent's arrest outside of the club known as "Clippers," in the County of Queens, City and State of New York.

Defendants first seek dismissal of plaintiff's causes of action for assault and battery, false imprisonment, intentional and negligent infliction of emotional distress, invasion of privacy, negligent hiring, retention and supervision and malicious abuse of process based on plaintiff's failure to assert these theories of liability in his notice of claim.

Pursuant to General Municipal Law §�50-e[a][1], service of a notice of claim within 90 days after a claim arises is a condition precedent to the commencement of a tort action against the City of New York and the New York City Police Department (See Laroc v. City of New York, 46 AD3d 760 [2d Dept. 2007]).

Plaintiff timely filed a notice of claim on April 1, 2010. Defendants acknowledge that this is notice of claim clearly sets forth claims for wrongful death and constitutional rights violation based on the their alleged negligence in failing to provide prompt and adequate medical care.

Contrary to defendants' contentions, the allegations in the notice of claim are also sufficient to set forth a claim for emotional distress based on this alleged negligence.

However, it is well settled that "[c]auses of action for which a notice of claim is required which are not listed in plaintiff's original notice of claim may not be interposed" (Scott v. City of New York, 40 AD3d 408, 409 [1st Dept. 2007] (quoting Mazzilli v. City of New York, 154 AD2d 355, 357 [2d Dept. 1989]).

While plaintiff's notice of claim provides a very detailed description of the nature of the claim, the allegations contained therein pertain exclusively to defendants' alleged failure to provide prompt and adequate medical attention.

The notice of claim does not contain any allegations pertaining to false imprisonment, invasion of privacy, negligent hiring, retention and supervision, and malicious abuse of process.

There is also not a single allegation that would suggest defendants caused the condition that required medical attention by assaulting and battering the decedent, as alleged in plaintiff's [*3]complaint.

Moreover, plaintiff's GML § 50-h testimony that the police who arrested the decedent beat him as well is insufficient to correct the defects in the notice of claim.

While such testimony may be permitted to clarify the location of an accident or the nature of the injuries sustained, information provided at a § 50-h may not be used to amend the theory of liability set forth in the notice of claim where such an amendment would change the nature of the claim (See Scott, supra, at 410; Figueroa v. New York City Hous. Auth., 271 AD2d 238, 239 [1st Dept. 2000]).

Accordingly, plaintiff's causes of action alleging assault and battery, false imprisonment, invasion of privacy, negligent hiring, retention and supervision, and malicious abuse of process must be dismissed.

Defendants have also demonstrated their entitlement to dismiss of plaintiff's causes of action alleging a deprivation of constitutional rights pursuant to 42 U.S.C. § 1983.

To recover on a § 1983 claim, a plaintiff is required to plead and prove (1) an official policy or custom that (2) causes plaintiff to be subjected to (3) a denial of a constitutional right (See Jackson v. Police Dep't of the City of New York, 192 AD2d 641, 642 [2d Dept. 1993]; see also Batista v. Rodriguez, 702 F.2d 393, 397 [2d Cir. 1984]; see generally Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 [1978]).

Here plaintiff's complaint fails to identify any official policy or custom to deprive medical attention to those in police custody and likewise fails to allege any facts from which such a policy or custom could be inferred (See Vargas v. City of New York, 105 AD3d 834, 837 [2d Dept. 2013]; see also Cozzani v. County of Suffolk, 84 AD3d 1147 [2d Dept. 2011]; R.A.C. Group, Inc. v. Bd. of Educ., 295 AD2d 489, 490 [2d Dept. 2002]; Holmberg v. Sheriff's Office, 279 AD2d 551 [2d Dept. 2000]).

Plaintiff fails to submit any opposition to this portion of defendant's motion.

Plaintiff likewise fails to submit any opposition to that portion of defendant's motion seeking dismissal of plaintiff's cause of action for intentional infliction of emotion distress.

It is well settled that public policy bars claims alleging [*4]intentional infliction of emotional distress against governmental entities (See Afifi v. City of New York, 104 AD3d 712, 713 [2d Dept. 2013]; Eckardt v. City of White Plains, 87 AD3d 1049, 1051 [2d Dept. 2011]; Ellison v. City of New Rochelle, 62 AD3d 830, 833 [2d Dept. 2009]).

Finally, defendant has established its entitlement to judgment and dismissal of plaintiff's remaining causes of action; to wit, wrongful death and negligent infliction of emotional distress.

On a motion for summary judgment, the proponent "must make 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. Center, 64 NY2d 851, 852 [1985]). Once the proponent 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 requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Defendants submit inter alia the deposition testimony of Police Officer Pete Hamilton, one of the arresting officers, that he immediately called for an ambulance when the decedent first began to complain of chest pain.

This is sufficient to demonstrate that defendants satisfied their obligation to provide medical treatment under the Due Process Clause (See Rasmussen v. City of New York, 766 F. Supp. 2d 399, 414 [E.D.NY 2011]). As such, this lawful conduct cannot support a cause of action for wrongful death or negligent infliction of emotional distress.

Plaintiff fails to raise a triable issue of fact in opposition to this prima facie showing. Plaintiff's claim that it is "highly unlikely" that medical treatment was promptly requested is wholly speculative.

It is well settled that "mere conclusion, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "A shadowy semblance of an issue or bald conclusory allegations, even if believable, are insufficient to defeat a motion for summary judgment" (Polanco v. City of New York, 244 AD2d 322 [2d Dept. 1997]; see also Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]; Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; Blankman v. Incorporated Village of Sands Point, 249 AD2d 349, 350 [2d Dept. 1998]; Colonial Commercial Corp. v. Breskel Assocs., 238 AD2d 539 [2d Dept. 1997]; Aaron Pitter & Co. v. Segal, 173 AD2d 159, 160 [1st Dept. 1991]).

Accordingly, defendants' motion is granted, in its entirety, and plaintiff's complaint is dismissed.