Estate of Rosenbaum v. City of New York

982 F. Supp. 894, 1997 U.S. Dist. LEXIS 20072, 1997 WL 728526
CourtDistrict Court, E.D. New York
DecidedNovember 18, 1997
DocketNo. 92-CV-5414 (FB)
StatusPublished
Cited by2 cases

This text of 982 F. Supp. 894 (Estate of Rosenbaum v. City of New York) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Rosenbaum v. City of New York, 982 F. Supp. 894, 1997 U.S. Dist. LEXIS 20072, 1997 WL 728526 (E.D.N.Y. 1997).

Opinion

MEMORANDUM AND ORDER

BLOCK, District Judge.

On August 22, 1997, the Court issued a Memorandum and Order (“August 22 Decision”) that, inter alia, dismissed plaintiffs’ claims under 42 U.S.C. § 1983 against defendants David N. Dinkins (“Dinkins”) and Lee Brown (“Brown”) on the grounds of qualified immunity. Estate of Rosenbaum, et al. v. City of New York, 975 F.Supp. 206 (E.D.N.Y.1997). Although Dinkins and Brown also sought dismissal of plaintiffs’ pendent state law claims, the Court noted that counsel had not addressed the issue of state law immunity in their submissions. The Court invited submissions on this discrete legal issue. As the issue is now fully briefed, the Court turns to a consideration of whether New York law requires dismissal of the pendent state law claims against Dinkins and Brown.

[895]*895In the August 22 decision, the Court set out at length the tragic facts giving rise to this case, and these facts will not be repeated herein. Briefly, however, the plaintiffs to this action largely consist of Hasidic Jewish residents of the Crown Heights section of Brooklyn. The gravamen of their complaint is that during the civil unrest that occurred in Crown Heights in August 1991, defendants Dinkins and Brown initially implemented a law enforcement strategy that “selectively den[ied] police protective and investigative services to Jews and other non-Black persons.” Amended Complaint at ¶ 144. In addition to claims under 42 U.S.C. §§ 1983, 1985 and 1986, the complaint, as amended, contains eight state causes of action: (1) a negligence claim for personal injuries allegedly sustained by plaintiffs; (2) a claim for property damage allegedly sustained by plaintiffs; (3) a claim for wrongful death on behalf of the Estate of Yankel Rosenbaum (“Estate”); (4) a survival claim on behalf of the Estate; (5) a loss of services claim by Yechiel Bitton for injuries allegedly sustained by his father Isaac Bitton during a physical assault; (6) a claim for infliction of emotional distress by Yechiel Bitton for psychological injuries sustained after viewing Isaac Bitton’s assault; (7) a claim by Isaac Bitton for loss of services based upon Yechiel Bitton’s psychological injuries; and (8) a claim on behalf of all plaintiffs based upon an alleged violation of New York Civil Rights Law § 40-c (McKinney 1992).

Turning first to the three claims asserted on behalf of plaintiffs Isaac and Yechiel Bit-ton (“the Bitton plaintiffs”), the Court notes that these parties, who alone are represented by Chana Sklar Israel, Esq., have not opposed Dinkins and Brown’s summary judgment motion. Indeed, in a letter to the Court dated June 9, 1997, Ms. Israel indicated that the Bitton plaintiffs were willing to discontinue their claims against Dinkins and Brown individually. In the absence of any opposition, therefore, the three state claims asserted on behalf of the Bitton plaintiffs are dismissed as against Dinkins and Brown in their individual capacities.

As a threshold matter, the Court also dismisses plaintiffs’ cause of action under Civil Rights Law § 40-c. As counsel for Dinkins and Brown has noted, a plaintiff must notify the Attorney General of the State of New York at or before commencing an action under this section. N.Y. Civ. Rights Law § 40-d. Failure to comply with this notice requirement mandates dismissal of the claim. See Harvey v. NYRAC, Inc., 813 F.Supp. 206, 212 (E.D.N.Y.1993). Plaintiffs have offered absolutely no proof controverting Dinkins and Brown’s contention that no such notice was given. Accordingly, this claim is dismissed.

Turning to plaintiffs’ remaining state law claims, the Court observes that New York immunity law “affords public officials considerably greater protection from individual capacity suits than the federal doctrine of qualified immunity.” Hirschfeld v. Spanakos, 909 F.Supp. 174, 180 (S.D.N.Y.1995). In the August 22 decision, the Court, based upon its independent review of controlling New York precedent, indicated its initial impression that principles of New York state immunity might well bar the assertion of these state law claims against Dinkins and Brown individually. Estate of Rosenbaum, 975 F.Supp. at 225. Having reviewed the parties’ submissions on New York immunity law, the Court concludes that its first impression was correct and that plaintiffs’ state law claims are indeed barred.

. The New York Court of Appeals has articulated the State’s official immunity standard as follows:

Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail' the exercise of some discretion and judgment. If these functions are essentially clerical or routine, no immunity will attach____ If a functional analysis of the actor’s position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion. Obviously, governmental immunity does not attach to every action of an official having discretionary duties but [896]*896only to those involving an exercise of that discretion.

Mon v. City of New York, 78 N.Y.2d 309, 313 579 N.E.2d 689, 692, 574 N.Y.S.2d 529, 532 (1991); see also Haddock v. City of New York, 75 N.Y.2d 478, 484, 553 N.E.2d 987, 991, 554 N.Y.S.2d 439, 443 (1990) (“when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action.”).

In opposition to Dinkins and Brown’s motion, plaintiffs contend that Dinkins and Brown’s law enforcement functions under the New York City Charter are ministerial and not discretionary and that a finding of official immunity is therefore not appropriate. Plaintiffs cite to provisions in the City Charter that provide, inter alia, that the New York City Police Department is required to preserve the peace, prevent crime, suppress riots, disperse unlawful assemblages and protect individual safety and property. They contend that Dinkins and Brown’s alleged failure to protect the Hasidic Jewish community in Crown Heights constituted a departure from a mandatory statute that provides for a compulsory result, and that this departure is a ministerial lapse that does not permit the assertion of official immunity.

Plaintiffs’ argument is patently without merit. “[T]he rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.” Tango v. Tulevech, 61 N.Y.2d 34, 41, 459 N.E.2d 182, 186, 471 N.Y.S.2d 73, 77 (1983).

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Bluebook (online)
982 F. Supp. 894, 1997 U.S. Dist. LEXIS 20072, 1997 WL 728526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-rosenbaum-v-city-of-new-york-nyed-1997.