Wright v. City of New York

2024 NY Slip Op 33585(U)

• Court: New York Supreme Court, New York County
• Decided: October 8, 2024
• Docket: Index No. 154194/2022
• Status: Unpublished

Opinion

Wright v City of New York 2024 NY Slip Op 33585(U) October 8, 2024 Supreme Court, New York County Docket Number: Index No. 154194/2022 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154194/2022 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 10/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART Justice ----------------------------------------------------X INDEX NO. 154194/2022 HILLARY WRIGHT, MOTION DATE 05/15/2024 Plaintiff, MOTION SEQ. NO. 004 - V-

CITY OF NEW YORK, MAYOR BILL DEBLASIO, NEW YORK CITY POLICE DEPARTMENT ("NYPD") COMMISSIONER DERMOT SHEA, NYPD CHIEF OF DECISION + ORDER ON DEPARTMENT TERENCE MONAHAN, NYPD MEMBER DOES, AMEL CIRIKOVIC, GREGORY BALUZY, MOTION CHRISTOPHER TREUBIG

Defendant. -----------------------------------~-----------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 59, 60, 61, 62, 63, 64,65,66,67, 68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81. 91, 92, 96, 97, 98 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .

Upon the foregoing documents, it is ordered that defendants The City of New York,

Mayor Bill de Blasio, Commissioner Dermot Shea, and NYPD Chief of Department Terence

Monahan's (hereinafter collectively referred to as the ··Moving Defendants") motion to reargue

this Court's prior Decision/Order dated Feb!illary 5, 2024 (hereinafter referred to as the "Prior

Decision"), which granted plaintiff's prior order to show cause to compel and to amend

(hereinafter referred to as the "Prior Motion") (Mot. Seq. No. 003), and Moving Defendants'

application in the instant motion seeking an extension to comply with the Prior Decision, is

decided below.

Plaintiff commenced this action against defendants by summons and complaint seeking

monetary damages for personal injuries she sustained on February 12, 2021 when plaintiff

attended a demonstration and was allegedly thrm:vn to the sidewalk by five NYPD Officers who 154194/2022 WRIGHT, HILLARY vs. CITY OF NEW YORK ET AL Page 1 of 6 Motion No. 004

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assaulted her. In the Prior Motion. plaintiff moved to compel Moving Defendants to reveal the

identities of the five pol ice officers al lcgcdly involved in the subject incident. The Prior Decision

ordered Moving Defendants to provide the identities of the five officers on or before February 7.

2024 and that failure to comply could result in the striking of defendants' answer. The Prior

Decision further granted the portion of the Prior ~fotion seeking to amend the complaint.

ordering plaintill upon receipt of the identities of the five officers on or before February 7, 2024.

to file an Amended Complaint to substitute the names of such identified officers on or before

February 13. 2024.

It is undisputed that following the Prior Decision. Moving Defendants partially complied

with this Court's order by timely providing the identities of three of the five police officers.

Plaintiff then timely amended the complaint to add the three officers whose identities were

provided by Moving Defendants. At issue herein are the identities of the remaining two NYPD

police officers whose identities were not disclosed prior to the February 7, 2024 deadline as

ordered in the Prior Decision, and was not disclosed by Moving Defendants prior to the

expiration of the statute of limitations.

CPLR 2221(d)(2) permits a party to move for leave to reargue a decision upon a showing

that the court misapprehended the law in rendering its initial decision. ''A motion for leave to

reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be

granted only upon a showing that the court overlooked or misapprehended the facts or the lavv or

for some reason mistakenly arrived at its earlier decision." lVilliam P. Pahl Equip. Corp. v

Kassis. 182 AD2d 22. 27 ( l st Dep't 1992). appeal denied in part. dismissed in part 80 NY2d

l 005 ( 1992) (internal quotations omitted).

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Preliminarily. the Court notes that Moving Defendants moved by Notice of Motion dated

February 7, 2024. the deadline set forth in the Prior Decision, seeking an extension of time to

comply. setting the return date of the instant motion for February 23, 2024. ten (10) days after

the expiration of the statute of limitations; the statute of limitations having fallen on February 12.

2024 which was a court holiday such that all papers \Vere to be filed on or before February 13.

2024. Moving Defendants argue that the deadline provided in the Prior Decision was unduly

burdensome and that an extension of time to provide the identities would not prejudice plaintiff

as plaintiff could move to add any ne\v defendants. following the expiration of the statute of

limitations. by using the relation back doctrine. Moving Defendants further argue that this Court

overlooked matters of fact and law in the Prior Decision, in that Moving Defendants now argue

that they timely demanded an unsealing authorization in its Answer and Combined Demand for

Verified Bill of Particulars dated July 11. 2022. as well as in its Amended Answer dated

November 13, 2023.

In opposition. plaintiff argues that this Court did not overlook the facts in the Prior

Decision, and that Moving Defendants ignored plaintiffs prior attempts to obtain the identities at

issue herein. Plaintiff further cross-moves for sanctions. Moving Defendants reply and oppose

plaintiffs cross-motion for sanctions. The Court notes that plaintiff moved, in part, for sanctions

in I'vfotion Seq. No. 007, the same relief as requested herein. The portion of Mot. Seq. No. 007

which seeks sanctions is decided in this Decision/Order along with plaintiffs cross-motion for

sanctions herein.

With regards to the portion oOv1oving Defendants· instant motion seeking an extension

of time to comply vvith the Prior Decision, such relief is deemed moot as the identities of one of

the remaining two officers have been provided to plaintif1; albeit after the statute of limitations

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had expired. After virtual conference with all counsel on October 7. 2024, the Court notes that

the remaining officer could not be identified. Regarding Moving Defendants' argument that

plaintiff is not prejudiced due to the relation back doctrine. such contention is misplaced as

plaintiff has mnv been placed under an additional burden which would be unnecessary had the

identities of the two officers been timely provided in compliance with this Court's·Prior

Decision. In fact. one of plaintiffs subsequent motions to amend the complaint to add one of the

officers \\tas denied due to this added burden to relate back.

After revievv of all the papers herein, and all the papers submitted in the Prior Motion, the

Court notes that Moving Defendant failed to raise the argument regarding its demand for an

unsealing authorization, found in its standard form demands. in the Prior Motion. Rather,

l\foving Defendants· opposition papers to the Prior Motion relied predominantly upon the

argument that they had an insufficient amount oftime to investigate after plaintiff provided the

unsealing authorization, The Appellate Division, First Department has explicitly stated that

·'[ rleargument is not designed to afford the unsuccessful party successive opportunities to

reargue issues previously decided or to present arguments different from those originally

asserted.'' HH!iam P. Pahl Equip. Corp .. supra. Moving Defendants had an opportunity to raise

the argument in the Prior Motion but chose to omit it. Plaintiff correctly argues that the Court did

not overlook or misapprehend matters of fact or lavv in the Prior Decision, as Moving

Defendant's instant motion is predicated on a new argument. Thus. Moving Defendants' new

argument is not considered herein on the instant motion to reargue. Here, Moving Defendants

have failed to establish that the Court. in its Prior Decision, misapprehended or overlooked the

facts or law in ordering the disclosure of the identities of the NYPD police officers.

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Nevertheless. after review of all the facts and circumstances herein, as well as review of

the Prior Decision v,foch states that Moving Defendants· .. failure to comply with this

Decision/Order may result in the striking of defendants· answer·•, the Court declines to strike

Moving Defendants' answer(s) as the identities of four of the five NYPD police officers have

no\V been provided to plaintiff. Prior Decision, p. 5. Moreover. the Court. in the Prior Decision.

had already granted plaintiffs order to show cause to amend the complaint to add the officers to

this action. As such. plaintiffs Second Amended Summons and Second Amended Verified

Complaint. NYSCEF Doc. No. 120. which adds police otlicer Andrc,v Hillery to the instant

action is deemed timely filed nunc pro tune to February 12. 2024, the date of the original

Amended Complaint.

As for plaintiffs cross-motion for sanctions. such cross-motion is denied. Plaintiff argues

that Moving Defendants have consistently made frivolous motions in this action. 22 NYCRR §

13 0-1.1 (c) states that:

conduct is frivolous if: ( 1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Plaintiff has failed to establish that Moving Defendants· motion or arguments were completely

'Aithout merit, or that such motion or actions were made primarily to delay resolution of the

litigation or to harass. Thus, plaintiffs cross-motion is denied in its entirety.

Accordingly. it is hereby

ORDERED that Moving Defendant's motion to reargue this Court's Prior Decision is

granted solely to the extent that Moving Defendants· anS\\er(s) are not stricken and plaintiffs

complaint shall be amended nunc pro tune to February 12. 2024 to add Andre·w Hillery; and it is

further

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ORDERED that plaintiff shall re-file and serve the Second Amended Summons and

Second Amended Verified Complaint to substitute the name of the identified officer on or before

November 7, 2024; and it is further

ORDERED that plaintiff's cross-motion for sanctions herein, and the portion of

plaintiffs motion seeking sanctions in Motion Seq. No. 007, is denied in its entirety: and it is

ORDERED that, within 30 days of entry, Moving Defendants shall serve upon all parties

a copy of this decision and order. together with notice of entry.

This constitutes the Decision and Order of the Court.

10/8/2024 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FfNAL DISPOSITION

GRANTED DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK lF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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