Higgins v. City of New YorkHiggins 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 Christоpher 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
On September 4, 2010, Officers Manuel Barreto, Christopher Crocitto, and Matthew Palmerini of the New Yоrk 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 оbserved 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.
Turning first to the false arrest and excessive force claims under
Under the relation-back doctrine of
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 similаrly 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
Plaintiffs argue that unity of interest exists, notwithstanding the City‘s undisputed lack of vicarious liability on the subject claims against the two officers. In their appellate brief, plaintiffs contend: “Whether two parties are united in interest does not depend upon the specific type of causes of action brought against the respective parties. Rather, it depends on the transactions or occurrences underlying those causes of action, and the jural relationship of the parties. Indeed, the test is conduct specific, not claim specific” (citation omitted).
Plaintiffs’ theory that the test for unity of interest is “not claim specific” is inсonsistent with this Court‘s precedent. In Brunero (121 AD3d 624 [1st Dept 2014], supra), the plaintiff had been injured in Central Park by a maintenance vehicle and commenced an action asserting causes of action for negligence and gross negligence against the City. Shortly after the statute of limitations expired, the City disclosed that the driver of the vehicle had been an employee of nonparty Central Park Conservancy (CPC), which had entered into an agreement with the City to provide maintenance services in Central Park. Thе agreement provided that the City would indemnify CPC for liability arising from CPC‘s negligence but not for liability arising from CPC‘s gross negligence. This Court held that the City and CPC were united in interest with respect to the negligence claim against CPC but not with respect to the gross negligence сlaim, and therefore allowed the plaintiff to add CPC as a defendant on the negligence claim but not on the
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 pаrticular 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 nаmed 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 dеfendant, 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 discussеd, 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