Higgins v. City of New York

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered June 13, 2014, which granted plaintiffs’ motion for leave to amend the complaint to substitute Officer Christopher Crocitto for defendant “John Doe,” and to add Officer Matthew Palmerini as a defendant, unanimously modified, on the law, to deny the motion insofar as it seeks to assert against Crocitto and Palmerini so much of the second, fifth and eighth causes of action of the amended complaint as are based on allegations of false arrest and excessive force in violation of 42 USC § 1983 , and otherwise affirmed, without costs.

On September 4, 2010, Officers Manuel Barreto, Christopher Crocitto, and Matthew Palmerini of the New York City Police Department stopped a vehicle occupied by plaintiffs Bryan Higgins, Michael Vaughn, and Joseph Tarrant, based on a traffic violation. According to the subsequent criminal complaint signed by Officer Barreto, the officers observed an open container of alcohol inside the vehicle and asked plaintiffs to exit. Upon plaintiffs’ exit, the officers observed a small vial of crack cocaine inside the vehicle, and, upon a further search, discovered a large bag of crack cocaine in the glove compartment. The three plaintiffs were arrested and charged with possession of cocaine. On September 28, 2012, the criminal complaints were dismissed.

The requirement of unity of interest is “more than a notice provision” (Mongardi v BJ’s Wholesale Club, Inc., 45 AD3d 1149 , 1151 [3d Dept 2007] [internal quotation marks omitted]). The test is whether “the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other” (Vanderburg v Brodman, 231 AD2d 146 , 147-148 [1st Dept 1997] [internal quotation marks omitted]). Thus, unity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other (see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219 , 226 [1992]; Brunero v City of N.Y. Dept. of Parks & Recreation, 121 AD3d 624 , 626 [1st Dept 2014]). Unity of interest fails if there is a possibility that the new defendants may have a defense unavailable to the original defendants ( 121 AD3d at 625 ; Mercer v 203 E. 72nd St. Corp., 300 AD2d 105 [1st Dept 2002]; Montalvo v Madjek, Inc., 131 AD3d 678 , 680 [2d Dept 2015]; Mongardi, 45 AD3d at 1151 ).

Plaintiffs argue that Officers Crocitto and Palmerini are united in interest with the City of New York, one of the original defendants, because the officers are employees of the City. It is undisputed, however, that the City cannot be held vicariously liable for its employees’ violations of 42 USC § 1983 . Rather, the City can be held liable under 42 USC § 1983 only for violating that statute through an unconstitutional official policy or custom (see Liu v New York City Police Dept., 216 AD2d 67 [1st Dept 1995], lv denied 87 NY2d 802 [1995], cert denied 517 US 1167 [1996]; Jackson v Police Dept. of City of N.Y., 192 AD2d 641 [2d Dept 1993], lv denied 82 NY2d 658 [1993], cert denied

Plaintiffs’ theory that the potential vicarious liability required to support a finding of unity of interest “need only be theoretically possible,” and need not necessarily apply to the particular claim sought to be asserted against the proposed new defendant, finds no support in the case law on which plaintiffs rely. Pendleton v City of New York ( 44 AD3d 733 [2d Dept 2007]) addressed only whether proposed new claims against the same municipal defendants that had been named in the original complaint related back to the commencement of the action. The case did not involve an attempt to add any new defendants and, therefore, does not even refer to the concept of unity of interest, which has no relevance where the plaintiff does not propose to add a new defendant (see Buran, 87 NY2d at 178 [“allowing the relation back of amendments adding new defendants implicates more seriously . . . policy concerns (regarding fairness to defendants) than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court”]).

Also unavailing is plaintiffs’ reliance on Cuello v Patel ( 257 AD2d 499 [1st Dept 1999]), a wrongful death action against a hospital in which, after the expiration of the statute of limitations, we permitted the plaintiff to add as a defendant a physician allegedly employed by the hospital, based on the fact that, “as to the claim asserted against [the physician], and assuming an employment relationship is established, the fate of the [hospital] and [the physician] would rise and fall together” (id. at 500). Stated otherwise, because the hospital was potentially vicariously liable for any negligence of the physician whom the plaintiff sought to add as a defendant, the requirement of unity of interest between the hospital and the physician was satisfied so as to permit adding the physician as a defendant after the expiration of the limitations period. By contrast, in this case, as previously discussed, as to the federal false arrest and excessive force claims sought to be asserted against Officers Crocitto and Palmerini, the fortunes of the City and the officers will not “rise and fall together,” because the City is not vicariously liable for the officers’ alleged violations of 42 USC § 1983 .

Concur— Tom, J.P., Mazzarelli, Friedman, Richter and Kahn, JJ.