The following e-filed documents, listed by NYSCEF document number (Motion 003) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 94, 95, 96, 97, 98 were read on this motion to/for JUDGMENT — SUMMARY.

Upon the foregoing documents, it is

In this proceeding, defendants THE CITY OF NEW YORK, THE CITY OF NEW YORK S/H/A THE NEW YORK CITY POLICE DEPARTMENT, and ARLENE TEJADA S/H/A P.O. ARLENE TEJADA (hereinafter, the "City" or "moving defendants"), seek an Order (1) pursuant to CPLR 3212 granting summary judgment on plaintiff's claims of false arrest, false imprisonment and 1983 unlawful search and seizure as plaintiff cannot establish actual arrest or custody and plaintiff cannot establish unlawful search and seizure pursuant to 42 U.S.C 1983; (2) pursuant to CPLR 3211(a)(7) and 3212, granting summary judgment and/ or dismissing plaintiff's state law claim for negligent hiring, training, retention, and supervision, as all New York City Police Department ("NYPD") police officers were acting within the scope of their employment; (3) Pursuant to CPLR 3211(a)(7) and 3212, dismiss and/or granting defendants summary judgment and dismissing plaintiff's 1983 Monell claim, to the extent pled, as it is insufficiently pled and/or there are no facts to establish a policy, practice or custom, or in the alternative, bifurcating the "Monell" claim; (4) pursuant to CPLR §§ 3211(a)(7) and 3212, granting summary judgment and/or dismissing plaintiff's claim for general negligence pursuant to state law, as this claim is duplicative of the alleged intentional torts plaintiff pled in his Complaint; (5) pursuant to CPLR §§ 3211(a)(7) and 3212, dismissing plaintiff's claims brought under the New York State Constitution as there are alternative remedies available; (6) pursuant to CPLR §§ 3211(a)(7) and 3212, dismissing any federal 1983 claims brought under the Fifth or Sixth amendment as improperly pled and not supported by any facts; (7) pursuant to CPLR § 3211(a)(7) granting summary judgment and dismissing plaintiff's claims against the NYPD as the NYPD is a non-suable entity pursuant to Chapter 17, Section 396 of the New York City Charter; and (8) pursuant to CPLR §§ 3125(c), 1024, and 306(b), dismissing plaintiff's complaint in its entirety as against defendant P.O. "JANE DOES #1-10" and P.O. "JOHN DOES #1-10."

This action arises out of personal injuries allegedly sustained by plaintiff when he was handcuffed and placed in an ambulance by police officers. On January 15, 2020, at around 11:00 a.m., plaintiff was riding his bicycle southbound on Broadway when a vehicle struck the plaintiff's bike at the intersection of 173rd Street while plaintiff was turning left. Plaintiff fell off the bike and felt pain on his forehead, right arm, lower back, left shoulder, left knee, and right elbow. Plaintiff was also concerned he was suffering from internal bleeding to his head. NYPD then arrived at the scene and proceeded to call an ambulance for plaintiff. EMS put him on a stretcher and then into the ambulance. Plaintiff later told officers that he felt disrespected by the EMS personnel and wished to be taken to the hospital in another ambulance. After 40 minutes to an hour of attempting to convince the plaintiff to get into the ambulance, he was handcuffed and forcibly placed in the ambulance by the officers. The handcuffs were removed once plaintiff arrived at the hospital.

Plaintiff's claims (1) for negligent hiring, retention, and supervision; (2) for general negligence; (3) brought under the New York State Constitution; (4) under the Fifth and Sixth Amendment; and (5) against the NYPD are dismissed on consent. Plaintiff's Complaint in its entirety as against defendant P.O "JANE DOES #1-10" and P.O "JOHN DOES #1-10" is dismissed on consent. As such, the City's motion for summary judgment and dismissal as to plaintiff's remaining claims is granted in part and to the extent set forth herein.

On a CPLR 3211 motion to dismiss, a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and [*2]determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). Under CPLR 3211 (a)(7) "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" (id. [internal citations omitted]).

To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of NY, 49 NY2d 557 [1980]; Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 NY3d at 833). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). If the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action (Zuckerman, 49 NY2d at 560; Jacobsen, 22 NY3d at 833).

The City argues that the Court should dismiss the plaintiff's causes of action for false arrest and false imprisonment under state and federal law.

In support of their motion to dismiss in respect to these specific claims, the City argues there was probable cause to forcibly remove plaintiff to the hospital under MHL 9.41, and the officers are entitled to qualified immunity. The City contends probable cause was established based on testimony of plaintiff, the officers, and the records, wherein the city argues it was made clear that the officers' actions were lawful given that plaintiff was involved in a serious car accident where his head was smashed on the ground and a reasonable officer would believe plaintiff was in need of urgent medical treatment to prevent a serious injury to himself. Furthermore, the City highlights the fact that plaintiff was refusing to go to the hospital despite the ambulance being on scene, in combination with plaintiff's injuries, which could lead a reasonable officer to believe that plaintiff was mentally ill and in need of immediate medical treatment to prevent substantial risk of harm to himself. In addition, the City argues, assuming, arguendo, that the Court finds a question of fact regarding probable cause, the Court should still dismiss the state and federal false arrest and false imprisonment claims against Police Officer Tejada because she is entitled to qualified immunity.

In opposition, plaintiff argues that there was no probable cause to handcuff him and arrest him as there was no likelihood herein of him harming himself or others. Plaintiff asserts that he was willing to go to the hospital, just not with the ambulance that arrived on scene. Furthermore, plaintiff contends that there was no likelihood of harm to others as he sat on the sidewalk, and the only alleged harm or physical threat to officers occurred when they took physical action, i.e., forcibly attempting to handcuff him, which plaintiff could not understand. As such, plaintiff argues that there is a question of fact regarding probable cause in this matter.

The elements of false arrest are "substantially the same" under state and federal law and require the same analysis (Crooks v. City of New York, 189 AD3d 771, 771 [2d Dept 2020]). To prevail on an action for false arrest and imprisonment, "the plaintiff must demonstrate that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, [*3]that the plaintiff did not consent to the confinement and that the confinement was not privileged (De Lourdes Torres v. Jones, 26 NY3d 742, 759 [2016]). "For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause" (Id.). It is well-established that probable cause to arrest is an objective inquiry examined from the perspective of the arresting officer (People v. Coffey, 12 NY2d 443, 451 [1963]). In determining probable cause, courts should evaluate the totality of the circumstances of a given arrest, accounting for, "the realities of everyday life unfolding before a trained officer who has to confront on a daily basis, similar incidents" (People v. Graham, 211 AD2d 55, 58-59[(1st Dept 1995]). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual, and probable cause must be judged under the totality of the circumstances" (De Lourdes Torres, 26 NY3d at 759). "In general, the existence or absence of probable cause is a question of fact and becomes a question of law to be decided by the court 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] [internal quotes omitted]).

Under MHL § 9.41, a police officer may "take into custody" any person who (1) appears to be mentally ill and (2) is conducting themselves in a manner which is likely to result in serious harm to themselves or others. MHL § 9.41. Under the statute, "likely to result in serious harm" is defined as follows: (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm (MHL § 9.01). "In the context of a mental health seizure, probable cause exists where the facts and circumstances known to the officers at the time they seized the individual were sufficient to warrant a person of reasonable caution to believe that the individual may be mentally ill and conducting themselves in a manner likely to result in serious harm to the person or others" (Benitez v. City of New York, 82 Misc 3d 1223(A) [NY Sup. Ct. 2024]).

"Police officers are often forced to make on the spot judgments about a person's mental health and should be entitled to reasonable leeway in those situations" (Kerman v. City of New York, 261 F.3d 229, 241 [2d Cir. 2001]). "To be entitled to qualified immunity, it must be established that it was objectively reasonable for the police officer involved to believe that his or her conduct was appropriate under the circumstances, or that officers of reasonable competence could disagree as to whether his or her conduct was proper" (Delgado v. City of New York, 86 AD3d 502, 510 [1st Dept 2011]).

Here, plaintiff was a victim in a car accident that resulted in him being thrown from his bike and striking his head against the ground. Plaintiff believes he lost consciousness and was on the ground for at least five minutes. Plaintiff was refusing to go to the hospital in the ambulance that arrived on scene. However, there are triable issues of fact as to whether the officers on scene could have reasonably concluded that the plaintiff had mental health issues and that he was conducting himself in a manner likely to result in serious harm to himself or others (Smolian v. Port Auth. of New York & New Jersey, 128 AD3d 796, 799 [2d Dept 2015]). As such, summary judgment is denied with respect to plaintiff's cause of action for false arrest and false imprisonment.

Furthermore, the Court finds the City's argument that if the Court finds a question of fact regarding probable cause, the state and federal false arrest and false imprisonment claims against Police Officer Tejada should still be dismissed because she is entitled qualified immunity unavailing. (Benitez, 82 Misc 3d 1223(A) at *5 ["The outstanding questions of fact regarding the reasonableness of the officer's actions also precludes a determination at this stage regarding qualified immunity"]).

The City argues that plaintiffs § 1983 Monell claim should be dismissed as it is not properly plead. The City argues plaintiff's Complaint asserts in the most conclusory fashion that the defendants "failed to adequately and properly hire, train, supervise, discipline, or in any other way control the behavior of defendants" (see NYSCEF Doc. No. 79 at ¶ 55). The City also argues that plaintiff's Complaint merely asserts the City has a policy or custom without any factual support or evidence. In any event, the City contends that even if plaintiff properly pled a Monell claim, plaintiff cannot demonstrate that solely the City's policy directly caused plaintiff's alleged injuries, and causation is an essential element of a claim brought pursuant to 42 U.S.C. § 1983. In addition, the City asserts that there are no facts in the record to support the existence of any policy, practice or custom, and therefore, there are no issues of fact. However, the City states that, in the alternative, if this Court finds that plaintiff properly pled a Monell claim, the City also seeks an order bifurcating the discovery and trial of the Monell claims against defendant City and staying the Monell discovery and trial until after the conclusion of trial of the remaining claims, as the bifurcation and stay will serve the interests of efficiency and judicial economy and will avoid prejudicing and confusing the jury.

In opposition, plaintiff argues that his Complaint does allege various policies and practices of the City of New York that resulted in a deprivation of plaintiff's constitutional rights (see NYSCEF Doc. No. 79, ¶ 59-70). Plaintiff also argues that the actions of the police officers involved in plaintiff's arrest provide the connection or affirmative link between the City's customs and policies and the deprivation of plaintiff's rights.

"Pursuant to 42 U.S.C § 1983, a plaintiff may maintain an action against governmental actors for, inter alia, false arrest and malicious prosecution in violation of the law and Constitution of the United States" (Crooks, 189 AD3d at 771). However, "the government itself cannot be liable for false arrest or malicious prosecution under 42 U.S.C. § 1983 unless an official government policy, custom or widespread practice caused the violation of the plaintiff's constitutional rights" (De Lourdes Torres, 26 NY3d at 762). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law" (id. at 768 [internal citations omitted]).

Here, plaintiff alleges the alleged deprivation of his constitutional rights was the result of the City's customs and/or policies but fails to plead the existence of an official policy or custom (see NYSCEF Doc. No. 79, ¶ 59-70). More specifically, plaintiff fails to identify the municipal custom and practice which he alleges existed and which resulted in his arrest (Pang Hung Leung v. City of New York, AD2d 10, 11 [1st Dept 1995] [ "Broad and conclusory statements, and the wholesale failure to allege facts of the offending conduct alleged, are insufficient to state a claim under section 1983"]; [Bryant v. City of New York, 188 AD2d 445 [2d Dept 1992] ["Given the complete absence of any factual allegations in the complaint regarding the alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or [*4]"ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 U.S.C §1983 were properly dismissed"]. Thus, plaintiff failed to sufficiently plead a Monell claim.

Accordingly, it is hereby

ORDERED, that the City's motion for summary judgment on plaintiff's claims of false arrest, false imprisonment and 1983 unlawful search and seizure is denied; and it is further

ORDERED, the City's motion to dismiss plaintiff's 1983 Monell Claim is granted; and it is further

ORDERED, plaintiff's claim for negligent hiring, retention, and supervision is dismissed on consent; and it is further

ORDERED, plaintiff's claim for general negligence is dismissed on consent; and it is further

ORDERED, plaintiff's claims brough under the New York State Constitution are dismissed on consent; and it is further

ORDERD, plaintiff's claims brought under the Fifth and Sixth Amendment are dismissed on consent; and it is further

ORDERED, plaintiff's claims against the NYPD are dismissed on consent; and it is further

ORDERED, that plaintiff's Complaint is dismissed in its entirety as against defendant P.O "JANE DOES #1-10" and P.O "JOHN DOES #1-10."

This constitutes the Decision and Order of the Court.