
    Cornell CURRY, Plaintiff, v. NEW YORK CITY POLICE DEPARTMENT et al., Defendants.
    No. 09 Civ. 6901(VM).
    United States District Court, S.D. New York.
    May 11, 2010.
    
      Cornell Curry, New York, NY, pro se.
    Brian Jeremy Farrar, Caroline Ling-Yu Chen, New York City Law Department, New York, NY, for Defendants.
   DECISION AND ORDER

VICTOR MARRERO, District Judge.

I.BACKGROUND

Plaintiff Cornell Curry (“Curry”) brought a motion in this action seeking a judgment by default on the ground that the answers of certain defendants are not verified. By Order dated April 20, 2010, Magistrate Judge Henry Pitman, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation (the “Report”), a copy of which is attached and incorporated herein, recommending that Curry’s motion be denied. Curry has not filed timely objections to the Report. For the reasons stated below, the Court adopts the recommendation of the Report in its entirety.

II.STANDARD OF REVIEW

A district court evaluating a Magistrate Judge’s order with respect to a matter not dispositive of a claim or defense may adopt the Magistrate Judge’s findings and conclusions as long as the factual and legal bases supporting the ruling are not clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A district judge, after considering any objections by the parties, may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge with regard to such matters. See Fed.R.Civ.P. 72(a); see also DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994).

III.DISCUSSION

Having conducted a review of the full factual record in this litigation, including the pleadings, and the parties’ respective papers submitted in connection with the underlying motion and in this proceeding, as well as the Report and applicable legal authorities, the Court concludes that the findings, reasoning, and legal support for the recommendation made in Report are not clearly erroneous or contrary to law and thus warranted. Accordingly, for substantially the reasons set forth in the Report the Court adopts the Report’s recommendation in its entirety.

IV. ORDER

For the reasons discussed above, it is hereby

ORDERED that the Report and Recommendation of Magistrate Judge Henry Pitman dated April 20, 2010 (Docket No. 19) is adopted in its entirety, and the motion plaintiff, Cornell Curry herein for entry of a default judgment is DENIED.

SO ORDERED.

REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge.

TO THE HONORABLE VICTOR MARRERO, United States District Judge,

Deeming the attached document to be a motion for a default judgment, the I respectfully recommend that the motion be denied. Relying on New York’s Civil Practice Law and Rules (“CPLR”), plaintiff seeks a default judgment on the ground that the answers of certain defendants are not verified. To the extent the CPLR sets forth rules of procedure, such as the verification of pleadings, it is not applicable in federal court. Procedure in federal court is governed by the Federal Rules of Civil Procedure which do not require that pleadings be verified. Fed. R.Civ.P. 11(a). Accordingly, the lack of a verification does not render any of the answers deficient, and there is no legal basis for the entry of a default judgment.

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, United States District Judge, 500 Pearl Street, Room 660, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Marrero. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United, States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)

SO ORDERED.

Dated: April 20, 2010.

EXHIBIT A

ANSWER TO AMENDED COMPLAINT BY CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT AND OFFICER EVANGE-LOS NIKIFORIDIS

Defendants City of New York, New York City Police Department (“NYPD”) and Officer Evangelos Nikiforidis, by their attorney, Michael A. Cardozo, Corporation Counsel of the City of New York, as and for their answer to the amended complaint (hereinafter “Complaint”) dated November 17, 2009, respectfully allege, upon information and belief, as follows:

1. Deny the allegations set forth in Part “I” (on pages “1” through “2”) of the Complaint, entitled “Parties in this complaint,” except admit that plaintiff purports to name the parties to this action as stated therein.
2. Deny the allegations set forth in Part “II” (on page “2”) of the Complaint, entitled “Basis for Jurisdiction,” except admit that plaintiff purports to invoke the Court’s jurisdiction as stated therein.
3. Deny the allegations set forth in Part “HI” (on page 3) of the Complaint, entitled “Statement of Claim.” In addition, defendants respectfully refer the Court to paragraphs 5 to 17 below, being defendants’ responses to the statements set forth by plaintiff on pages 4 to 10 of the Complaint.
4. Deny the allegations set forth in Part “IV” (on page “3”) of the Complaint, entitled “Injuries”.
5. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “1” (on page “4”) of the Complaint.
6. Deny the allegations set forth in paragraph “2” (on pages “4-5”) of the Complaint, except admit that plaintiff purports to proceed as stated therein.
7. Deny the allegations set forth in paragraph “3” (on page “5”) of the Complaint, except admit that the NYPD’s principal place of business is One Police Plaza, New York, New York and that Cesar Gonzalez and Evangelos Nikiforidis are NYPD Officers.
8. Deny the allegations set forth in paragraph “4” (on page's “5-6”) of the Complaint.
9. Deny the allegations set forth in paragraph “5” (on page “6”) of the Complaint, except admit that officers observed plaintiff at the Canal Street subway station.
10. Deny the allegations set forth in paragraph “6” (on page “6”) of the Complaint, except admit that plaintiff purports to annex to his Complaint a “lucky” receipt as an exhibit.
11. Deny the allegations set forth in paragraph “7” (on pages “6-7”) of the Complaint, except admit that Officers Gonzalez and Nikiforidis stopped plaintiff and recovered bent metrocards from plaintiffs person.
12. Admits the allegations set forth in paragraph “8” (on page “7”) of the Complaint.
13. Deny the allegations set forth in paragraph “9” (on pages “7-8”) of the Complaint, except deny knowledge or information sufficient to form a belief as to the length of plaintiffs alleged incarceration, and except admit that plaintiff purports to annex to the Complaint a certificate as an exhibit.
14. Deny the allegations set forth in paragraph “10” (on pages “8-9”) of the Complaint, except admit that plaintiff annexed to the Complaint what he purports is a transcript of an administrative hearing as an exhibit.
15. Deny the allegations set forth in paragraph “11” (on page “9”) of the Complaint, except deny knowledge or information sufficient to form a belief as to any court proceedings or the disposition of any criminal charges against plaintiff.
16. Deny the allegations set forth in paragraph “12” (on page “9”) of the complaint except admit that a document purporting to be a “Notice of Claim” was received by the New York City Comptroller’s Office.
17. Plaintiffs statement in paragraph “13” (on page “9”) of the Complaint sets forth no averment of facts to which a response is required.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

18. The complaint fails to state a claim upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

19. Defendant Evangelos Nikiforidis has not violated any clearly established constitutional or statutory right of which a reasonable person would have known and acted reasonably. Thus, he is protected by qualified immunity.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

20. At all times relevant to the acts alleged in the complaint, defendants acted reasonably in the proper and lawful exercise of their discretion.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

21. Plaintiffs claims are barred, in whole or in part, by his failure to comply with the conditions precedent to suit.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

22. Any injury alleged to have been sustained resulted from culpable or negligent conduct on the part of plaintiff and/or third parties and was not the proximate result of any act of defendants.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

23. Any prosecution of plaintiff was supported by probable cause.

AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE:

24. Any detention or arrest of plaintiff was privileged and/or supported by probable cause.

AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE:

25. The New York City Police Department is not a suable entity.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE:

26. Plaintiff cannot obtain punitive damages against the City of New York.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE:

27. Defendant City of New York is entitled to governmental immunity.

WHEREFORE, defendants City of New York, New York City Police Department and Evangelos Nikiforidis request judgment dismissing the complaint in its entirety, together with the costs and disbursements of this action, and such other and further relief as the Court may deem just and proper.

Dated: New York, New York
February 8, 2010.
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York
Attorney for Defendants City of New York,
New York City Police Department and Officer Evangelos Nikiforidis
100 Church Street, Room 3-142
New York, New York 10007
(212)788-1106
By: /s/Caroline Chen
CAROLINE CHEN
Assistant Corporation Counsel
Special Federal Litigation Division
cc: BY REGULAR MAIL
Cornell Curry
Plaintiff pro se
General Delivery
390 Ninth Avenue
New York, New York 10001

EXHIBIT B

ANSWER TO AMENDED COMPLAINT BY OFFICER CESAR GONZALEZ

Defendant Cesar Gonzalez, by his attorney, Michael A. Cardozo, Corporation Counsel of the City of New York, as and for his answer to the amended complaint (hereinafter “Complaint”) dated November 17, 2009, respectfully alleges, upon information and belief, as follows:

1. Denies the allegations set forth in Part “I” (on pages “1” through “2”) of the Complaint, entitled “Parties in this complaint,” except admits that plaintiff purports to name the parties to this action as stated therein.
2. Denies the allegations set forth in Part “II” (on page “2”) of the Complaint, entitled “Basis for Jurisdiction,” except admits that plaintiff purports to invoke the Court’s jurisdiction as stated therein.
3. Denies the allegations set forth in Part “III” (on page 3) of the Complaint, entitled “Statement of Claim.” In addition, defendant respectfully refers the Court to paragraphs 5 to 17 below, being defendant’s responses to the statements set forth by plaintiff on pages 4 to 10 of the Complaint.
4. Denies the allegations set forth in Part “IV” (on page “3”) of the Complaint, entitled “Injuries”.
5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “1” (on page “4”) of the Complaint.
6. Denies the allegations set forth in paragraph “2” (on pages “4-5”) of the Complaint, except admits that plaintiff purports to proceed as stated therein.
7. Denies the allegations set forth in paragraph “3” (on page “5”) of the Complaint, except admits that the NYPD’s principal place of business is One Police Plaza, New York, New York and that Cesar Gonzalez and Evangelos Nikiforidis are NYPD Officers.
8. Denies the allegations set forth in paragraph “4” (on pages “5-6”) of the Complaint.
9. Denies the allegations set forth in paragraph “5” (on page “6”) of the Complaint, except admits that officers observed plaintiff at the Canal Street subway station.
10. Denies the allegations set forth in paragraph “6” (on page “6”) of the Complaint, except admits that plaintiff purports to annex to his Complaint a “lucky” receipt as an exhibit.
11. Denies the allegations set forth in paragraph “7” (on pages “6-7”) of the Complaint, except admits that Officers Gonzalez and Nikiforidis stopped plaintiff and recovered bent metrocards from plaintiffs person.
12. Admits the allegations set forth in paragraph “8” (on page “7”) of the ' Complaint.
13. Denies the allegations set forth in paragraph “9” (on pages “7-8”) of the Complaint, except denies knowledge or information sufficient to form a belief as to the length of plaintiffs alleged incarceration, and except admits that plaintiff purports to annex to the Complaint a certificate as an exhibit.
14. Denies the allegations set forth in paragraph “10” (on pages “8-9”) of the Complaint, except admits that plaintiff annexed to the Complaint what he purports is a transcript of an administrative hearing as an exhibit.
15. Denies the allegations set forth in paragraph “11” (on page “9”) of the Complaint, except denies knowledge or information sufficient to form a belief as to any court proceedings or the disposition of any criminal charges against plaintiff.
16. Denies the allegations set forth in paragraph “12” (on page “9”) of the complaint except admits that a document purporting to be a “Notice of Claim” was received by the New York City Comptroller’s Office.
17. Plaintiffs statement in paragraph “13” (on page “9”) of the Complaint sets forth no averment of facts to which a response is required.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

18. The complaint fails to state a claim upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

19. Defendant Cesar Gonzalez has not violated any clearly established constitutional or statutory right of which a reasonable person would have known and acted reasonably. Thus, he is protected by qualified immunity.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

20. At all times relevant to the acts alleged in the complaint, defendant acted reasonably in the proper and lawful exercise of his discretion.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

21. Plaintiffs claims are barred, in whole or in part, by his failure to comply with the conditions precedent to suit.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

22. Any injury alleged to have been sustained resulted from culpable or negligent conduct on the part of plaintiff and/or third parties and was not the proximate result of any act of defendant.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

23. Any prosecution of plaintiff was supported by probable cause.

AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE:

24. Any detention or arrest of plaintiff was privileged and/or supported by probable cause.

WHEREFORE, defendant Officer Cesar Gonzalez requests judgment dismissing the complaint in its entirety, together with the costs and disbursements of this action, and such other and further relief as the Court may deem just and proper.

Dated: New York, New York
February 9, 2010.
MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attorney for Defendants City of New York,
New York City Police Department, Officer
Cesar Gonzalez and Officer Evangelos Nikiforidis
100 Church Street, Room 3-142
New York, New York 10007
(212)341-0797
By: /s/Brian J. Farrar
BRIAN J. FARRAR
Assistant Corporation Counsel
Special Federal Litigation Division cc: BY REGULAR MAIL
Cornell Curry
Plaintiff pro se
General Delivery
390 Ninth Avenue
New York, New York 10001

EXHIBIT C

AFFIRMATION IN SUPPORT

JOHN ORCUTT, an attorney admitted to practice in New York and an Assistant Borough Chief of the City of New York, affirms the truth of the following under penalty of perjury pursuant to CPLR § 2106, upon information and belief based upon the records in the office of said Corporation Counsel.

1. This affirmation and annexed exhibits are submitted in support of the motion of the Defendant THE CITY OF NEW YORK s/b/a NEW YORK CITY POLICE DEPARTMENT TRANSIT DIVISION (hereinafter “City”) which seeks an Order pursuant to CPLR § 3211(a)(7) dismissing each and every cause of action individually, along with the complaint in its entirety, and all cross-claims for failure to state a cause of action, or in the alternative, pursuant to CPLR § 3212 granting Summary Judgment to Defendant City, on the grounds that the City is not liable for plaintiffs injuries.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

2. This is an action for personal injuries allegedly sustained by the plaintiff CORNELL CURRY on May 3, 2006 when plaintiff was arrested as he entered the subway located at 23rd Street and 8th Avenue in the City, County, and State of New York. See Notice of Claim, ¶ 4, annexed hereto as Exhibit A. Plaintiff was release 21 days later on May 24, 2006. 
      
      . For purposes of answering the Complaint dated November 17, 2009, attached hereto, for the Court’s convenience, is a copy of the complaint with the pages re-numbered 1 through 10.
     
      
      . For purposes of answering the Complaint dated November 17, 2009, attached hereto, for the Court’s convenience, is a copy of the complaint with the pages re-numbered 1 through 10. In addition, defendants City of New York, New York City Police Department and Evangelos Nikiforidis served their answer to the Complaint on February 8, 2010.
     