Garcia Ex Rel. Estate of Healy v. Sistarenik
603 F. App'x 61
2d Cir.
2015
Check Treatment
Docket

Denise Ann GARCIA, as administrator of the estate of James J. Healy, Jr., deceased, Plaintiff-Appellee, v. Deputy Benjamin SISTARENIK, Defendant-Appellant.

No. 14-3306.

United States Court of Appeals, Second Circuit.

May 13, 2015.

611 Fed. Appx. 61

tract explicitly identified the underlying agreement by name and was annexed to the underlying agreement); (rental agreement failed to incorporate by reference the underlying agreement because the rental agreement included sweeping language and the plaintiff did not receive underlying agreement); (signature card that the court found bound the account holder to external terms and conditions stated specifically that the account was “governed by the bylaws, regulations, rules and practices of the bank“).

Even assuming arguendo that Citibank established it was entitled to a presumption of receipt, the district court‘s factual findings in this regard are not clearly erroneous. There is ample record support for the district court‘s finding that “[i]f Citibank had a corporate policy regarding account openings, the record makes clear that its employees consistently ignored parts of the policy.” App‘x at 52.

Finally, we agree with the district court that Citibank waived its rights to raise the estoppel argument in exchange for Appellees’ narrowing the issues for which discovery was going to be conducted, and that Citibank could not undo that agreement. However, Citibank‘s waiver extended only to the issue before the district court during the proceedings on the motion to compel and does not extend to any other issues that may be implicated as the litigation continues.

We have considered the remainder of Citibank‘s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

David L. Posner (with Kimberly Hunt Lee, on the brief), McCabe & Mack LLP, Poughkeepsie, N.Y., for Appellant.

Michael Zilberg (with Gary Todd Certain, on the brief), Law Office of Certain & Zilberg, PLLC, New York, N.Y., for Appellee.

PRESENT: DENNIS JACOBS, PETER W. HALL and GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

Dutchess County Sheriff‘s Deputy Benjamin Sistarenik appeals from an interlocutory order of the United States District Court for the Southern District of New York (Stein, J.) denying his motion for summary judgment on the basis of qualified immunity. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Typically, “[t]he denial of a motion for summary judgment is ... not immediately appealable because such a decision is not a final judgment.” (internal quotation marks omitted). The collateral-order doctrine, however, provides a limited exception, under which “the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact.” (internal quotation marks omitted). In other words, this Court has appellate jurisdiction “to determine whether a [a disputed factual] issue is material, but not whether it is genuine.” .

1. As to the excessive force claim, we dismiss for lack of appellate jurisdiction.

Relying on conflicting witness testimony, the district court held that “a reasonable jury could conclude that Healy was no longer resisting the officers when he was tased,” Dist. Ct. Op. at 15; that “Healy did not pose an immediate threat to the safety of the officer[s] or others at the time Sistarenik tased Healy,” Dist. Ct. Op. at 17; and that “Sistarenik ... administer[ed] two taser shocks against Healy in short succession without advance warning and while Healy was restrained on the floor by four other officers,” Dist. Ct. Op. at 21.

It cannot be disputed that the fact issue of whether (and to what extent) Healy presented a threat at the time Sistarenik used the taser is material. See, e.g., (“Because a reasonable jury could ... find that the officers gratuitously inflicted pain in a manner that was not a reasonable response to the circumstances, ... the determination as to the objective reasonableness of the force used must be made by a jury following a trial.“). On appeal, Sistarenik refuses to accept plaintiff‘s version of the facts, and argues—just as he did in the district court—that “[f]rom Sistarenik‘s perspective[, Healy] presented a live and continuing threat,” Appellant‘s Br. at 21, at the time of the tasing. Perhaps he did; perhaps he did not. But we lack appellate jurisdiction to review the genuineness of these factual disputes. .

2. As to the due process claim for denial of medical care, we affirm the denial of summary judgment. Sistarenik‘s only argument on appeal is that, although the four state troopers on the scene had a duty to provide medical care to Healy, Sistarenik had no such duty because he was a “non-custodial officer.” Appellant‘s Br. at 29. Sistarenik cites no authority for this proposition.

In any event, the argument is forfeited, because Sistarenik raised it for the first time in his reply brief in support of his motion for summary judgment. Presumably, that is why the district court did not address the argument (in what is otherwise a thorough written opinion). Accordingly, we decline to consider it for the first time on appeal. See, e.g., .

*

*

*

For the foregoing reasons, and finding no merit in Sistarenik‘s other arguments, we hereby AFFIRM the order of the district court, in part; and DISMISS for lack of appellate jurisdiction, in part.

*

Notes

*
The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.