roger arthur lawsuit

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

ROGER ARTHUR,

Plaintiff,

-against-

THE CITY OF NEW YORK, POLICE OFFICER ANTHONY DENATALE (tax # 952282), POLICE OFFICER STEVEN COSENTINO (tax # 948816 ), DETECTIVE MICHAEL BURKE (tax # 929800), DETECTIVE JOHN DOE,

Defendants.

----------------------------------------------------------------------- x

COMPLAINT

Jury Trial Demanded

PRELIMINARY STATEMENT

1. This is a civil rights action in which the plaintiff alleges that the City of

New York and four New York City Police Officers of the 121st Precinct in Staten Island violated

his rights under 42 U.S.C. § 1983 and the Fourth and Sixth Amendments to the United States

Constitution by falsely arresting him, using unreasonable force on him, denying him a fair trial

and maliciously prosecuting him. Plaintiff also asserts claims of false arrest, assault, battery,

malicious prosecution and vicarious liability under New York state law. Plaintiff seeks

compensatory and punitive damages, attorney’s fees and costs, and such other and further relief

as the Court deems just and proper.

JURISDICTION & VENUE

2. This action is brought pursuant to 42 U.S.C. § 1983 and the Fourth and

Sixth Amendments to the United States Constitution. Jurisdiction is conferred upon this Court

by 28 U.S.C. §§ 1331 and 1343.

Case 1:15-cv-05267 Document 1 Filed 09/11/15 of 11 PageID #: 1

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3. Plaintiff invokes the supplemental jurisdiction of this Court pursuant to 28

U.S.C. § 1367 to hear and decide his New York state law claims of false arrest, assault, battery,

malicious prosecution and vicarious liability which form part of the same case and controversy

as plaintiff’s federal claims under Article III of the United States Constitution.

4. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C.

§ 1391(b) and (c) because the City of New York is located in this District and because the

incident in question occurred in this District.

JURY TRIAL

5. Pursuant to Fed. R. Civ. P. 38, plaintiff demands a jury trial.

NOTICE OF CLAIM

6. In connection with plaintiff’s claims of false arrest, assault, battery,

malicious prosecution and vicarious liability brought under New York state law, a notice of

claim and an amended notice of claim were duly filed with the City of New York within 90 days

of the incident at issue, more than 30 days have elapsed since such filings, and the City has not

offered to settle plaintiff’s state law claims.

7. This action is brought within one year and 90 days of the incident at issue.

PARTIES

8. Plaintiff is a resident of the State of New York, County of Richmond.

9. The City of New York is a municipal corporation organized under the

laws of the State of New York.

10. The individual defendants are members of the NYPD. The individual

defendants acted under color of state law and within the scope of their employment as members


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of the NYPD at all relevant times herein. The individual defendants are sued in their individual

capacities.

STATEMENT OF FACTS

11. On May 7, 2015, at approximately 10:00 p.m., plaintiff was the victim of a

gunpoint robbery and shooting that took place on Sharpe Avenue in Staten Island, New York.

12. Plaintiff was taken by ambulance to Richmond University Medical Center

located at 355 Bard Avenue to receive treatment for his injuries.

13. At the hospital, NYPD Officer Anthony Denatale, NYPD Officer Steven

Cosentino, NYPD Detective Michael Burke and an unidentified NYPD detective (collectively,

the “defendants”) of the 121st Precinct interviewed plaintiff about the robbery.

14. At the hospital, the defendants also interviewed Seymour Gray, whom

plaintiff did not know, who was the victim of a gunpoint robbery at a different time and location

by apparently the same individuals who had robbed and assaulted plaintiff.

15. The defendants became frustrated by plaintiff’s and Gray’s inability to

identify their assailants and thought that they were being intentionally uncooperative.

16. A verbal disputed followed.

17. During the verbal dispute, Officer Steven Cosentino lunged at Gray and

accidentally slipped and fell.

18. The enraged defendants subsequently arrested plaintiff and Gray and took

them to the 121st Precinct.

19. During the course of arresting plaintiff, Detective John Doe, maliciously

and without legal justification, twisted plaintiff’s left arm, pushed plaintiff and forced him to


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stand on his injured leg, causing plaintiff pain and physical injury. At all times at the hospital,

plaintiff was compliant and did not resist arrest.

20. At the 121st Precinct, the defendants, acting in concert, fabricated a story

that plaintiff and Gray, acting together, pushed Officer Cosentino to the ground. Based on this

fabrication, the defendants falsely charged plaintiff with assaulting and harassing Cosentino.

21. Plaintiff was eventually returned to Richmond University Medical Center

to receive additional medical treatment and, after receiving treatment, plaintiff was taken to

Staten Island Central Booking.

22. While plaintiff was incarcerated in Central Booking, the defendants,

acting in concert, misrepresented to the Richmond County District Attorney’s Office that

plaintiff had assaulted and harassed Officer Cosentino at Richmond University Medical Center.

23. In furtherance of having plaintiff prosecuted, Officer Denatale, with the

approval of the other defendants, signed a criminal court complaint falsely alleging that plaintiff

was involved in pushing Officer Cosentino to the ground and falsely charging plaintiff with

assault and harassment.

24. On May 8, 2015, at approximately 5:00 p.m., plaintiff was arraigned in

Criminal Court, Richmond County.

25. The presiding judge released plaintiff on his own recognizance and

adjourned plaintiff’s case until June 8, 2015.

26. On May 12, 2015, plaintiff hired a criminal defense attorney at a cost of

$2,600.

27. On May 15, 2015, the Richmond County District Attorney's Office

advanced plaintiff’s criminal case and dismissed all charges.


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28. Defendants’ illegal conduct caused plaintiff to suffer a loss of liberty,

emotional distress, fear, anxiety, humiliation, embarrassment, pain, physical injuries and

financial loss.

FIRST CLAIM

(§ 1983; FALSE ARREST)

(Against All Defendants)

29. Plaintiff repeats the foregoing allegations.

30. Defendants, acting under color of state law, arrested and imprisoned

plaintiff without legal justification or probable cause in violation of § 1983 and the Fourth

Amendment.

31. Defendants intended to confine the plaintiff, plaintiff was conscious of his

confinement, plaintiff did not consent to his confinement, and plaintiff’s confinement was not

privileged or lawful.

32. Defendants’ conduct caused plaintiff to suffer various personal injuries,

including the injuries described herein.

33. As a result of the foregoing, plaintiff is entitled to compensatory and

punitive damages in an amount to be determined at trial.

SECOND CLAIM

(§ 1983; UNREASONABLE FORCE)

(Against Detective John Doe)


35. Detective John Doe, acting under color of state law, used force upon

plaintiff which was objectively unreasonable in violation of § 1983 and the Fourth Amendment.


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36. Defendant’s conduct caused plaintiff to suffer various personal injuries,




THIRD CLAIM

(§ 1983; MALICIOUS PROSECUTION)



39. Defendants, acting under color of state law, maliciously misrepresented to

prosecutors that plaintiff had violated the law and initiated a prosecution against plaintiff which

terminated in plaintiff’s favor.

40. Defendants’ conduct violated § 1983 and the Fourth Amendment.





FOURTH CLAIM

(§ 1983; DENIAL OF A FAIR TRIAL)



44. Defendants, acting under color of state law, maliciously misrepresented to

prosecutors that plaintiff had violated the law in violation of § 1983 and the Sixth Amendment.


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FIFTH CLAIM

(§ 1983; FAILURE TO INTERVENE)



48. Defendants, while acting under color of state law, had a reasonable

opportunity to prevent the violations of plaintiff’s constitutional rights under the Fourth and

Sixth Amendments, but they failed to fulfill their constitutional obligation to intervene.





SIXTH CLAIM

(§ 1983; MUNICIPAL LIABILITY)

(Against the City of New York)


52. The City of New York is a “person” within the meaning of 42 U.S.C. §

1983.

53. The City of New York, through a policy, practice or custom, directly

caused the constitutional violations suffered by plaintiff.


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54. Upon information and belief, the City of New York, at all relevant times,

was aware that the defendants and other members of the NYPD are unfit officers who have

previously committed acts similar to those alleged herein, have a propensity for unconstitutional

conduct, and/or have been inadequately trained.

55. Despite having the aforesaid knowledge, the City exercised deliberate

indifference by failing to take remedial action. The City failed to properly investigate prior

allegations of police misconduct made against the defendants and other officers and failed to

properly train, retrain, supervise, discipline and monitor the defendants and other officers like

them.

56. The City’s failure to act resulted in the violation of plaintiff’s

constitutional rights as described herein.

57. The City’s conduct caused plaintiff to suffer various personal injuries,




SEVENTH CLAIM

(FALSE ARREST/FALSE IMPRISONMENT UNDER N.Y. STATE LAW)



60. Defendants, acting within the scope of their employment as members of

the NYPD, arrested and imprisoned plaintiff without legal justification or probable cause.


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61. Defendants intended to confine the plaintiff, plaintiff was conscious of his

confinement, plaintiff did not consent to his confinement, and plaintiff’s confinement was not

privileged or lawful.

62. Because the individual defendants were acting within the scope of their

employment when they falsely arrested and imprisoned plaintiff, the City of New York is

vicariously liable to plaintiff.





EIGHTH CLAIM

(ASSAULT UNDER N.Y. STATE LAW)



66. Detective John Doe, acting within the scope of his employment as a

member of the NYPD, placed plaintiff in fear of imminent harmful and offensive physical

contacts which injured plaintiff.

67. Because Detective John Doe was acting within the scope of his

employment when he assaulted plaintiff, the City of New York is vicariously liable to plaintiff.




punitive damages in an amount to be determined at trial


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NINTH CLAIM

(BATTERY UNDER N.Y. STATE LAW)



71. Detective John Doe, acting within the scope of his employment as a

member of the NYPD, made offensive and nonconsensual physical contact with plaintiff which

injured plaintiff.

72. Because Detective John Doe was acting within the scope of his

employment when he battered plaintiff, the City of New York is vicariously liable to plaintiff.




punitive damages in an amount to be determined at trial

TENTH CLAIM

(MALICIOUS PROSECUTION UNDER N.Y. STATE LAW)



76. Defendants, acting within the scope of their employment as members of

the NYPD, maliciously misrepresented to prosecutors that plaintiff had violated the law and

initiated a prosecution against plaintiff which terminated in plaintiff’s favor.

77. Because the individual defendants were acting within the scope of their

employment when they maliciously prosecuted plaintiff, the City of New York is vicariously

liable to plaintiff.


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WHEREFORE, plaintiff requests the following relief jointly and severally against

the defendants:

a. Compensatory damages in an amount to be determined by a jury;

b. Punitive damages in an amount to be determined by a jury;

c. Attorney’s fees and costs;

d. Such other and further relief as the Court may deem just and proper.

DATED: September 11, 2015

_____/s/___________________________ RICHARD CARDINALE Attorney at Law 26 Court Street, Suite # 1815 Brooklyn, New York 11242 (718) 624-9391


JS 44 (Rev. 1/2013) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated orReopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 1:15-cv-05267 Document 1-1 Filed 09/11/15 Page 1 of 2 PageID #: 12

Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless acertification to the contrary is filed.

I, ______________________, counsel for __________________, do hereby certify that the above captioned civil action isineligible for compulsory arbitration for the following reason(s):

monetary damages sought are in excess of $150,000, exclusive of interest and costs,

the complaint seeks injunctive relief,

the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1

Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues orbecause the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to thesame judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civilcase: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the powerof a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before thecourt.”

NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)

1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or SuffolkCounty:_________________________

2.) If you answered “no” above:a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or SuffolkCounty?_________________________

b) Did the events of omissions giving rise to the claim or claims, or a substantial part thereof, occur in the EasternDistrict?_________________________

If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau orSuffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassauor Suffolk County?______________________

(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.Yes No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?Yes (If yes, please explain) No

I certify the accuracy of all information provided above.

Signature:____________________________________________

CERTIFICATION OF ARBITRATION ELIGIBILITYCase 1:15-cv-05267 Document 1-1 Filed 09/11/15 Page 2 of 2 PageID #: 13

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AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk


AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:


roger arthur lawsuit

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